U.S. v. Davis
- Details on Reasonable Suspicion of ownership and the erosion of the prior
rule encouraging officers to ask non-parolee/non-probationers about the
ownership of items and structures during the search

Georgia v. Randolph 547 U.S. 103 (2006) : Two occupants were present,
one of whom agreed to search and the second who refused to search.
Distinguished Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 where
only one premises possessor was present.

United
States v. Tosti , 733 F.3d 816 (9th
Cir. 2013). Consent by a co-habitant. The panel held that a 2005
search of the defendant's computer at a CompUSA store was lawful because the
police officers who conducted it did not exceed the scope of the permissible
search already conducted by a private party, and a 2009 search of the
defendant's home office was lawful because the defendant's wife had apparent
authority, if not actual authority, to consent. Computer technician
discovered images of child pornography on a computer Mr. Tosti dropped off for service. Then,
Mrs. Tosti signed a written consent form and gave the computer and other
materials to federal authorities. Tosti contends that Ms. Tosti had neither
actual nor apparent authority to consent to those searches. Regardless of
whether Ms. Tosti had actual authority, the district court properly
determined that she had the apparent authority to grant the police access to
the materials.

"It is well established that a person with common
authority over property can consent to a search of that property without the
permission of the other persons with whom he shares that authority." United
States v. Murphy, 516 F.3d 1117, 1122 (9th Cir. 2008). "Under the apparent
authority doctrine, a search is valid if the government proves that the
officers who conducted it reasonably believed that the person from whom they
obtained consent had the actual authority to grant that consent." United
States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993). "To establish apparent
authority, the Government must show that: (1) [officers] believed an untrue
fact that they used to assess . . . control . . . ; (2) it was objectively
reasonable for [officers] to believe that the fact was true; and (3) if the
fact was true, [the third party] would have had actual authority to
consent." United States v. Enslin, 327 F.3d 788, 793-94 (9th Cir. 2003).
"[T]he doctrine is applicable only if the facts believed by the officers to
be true would justify the search as a matter of law." Welch, 4 F.3d at 764.

Fernandez v. California, 134 S. Ct. 1126, was a
2014 U.S. Supreme Court case that explored the limits of Georgia v.
Randolph, a 2006 case that held that consent to search a dwelling is invalid
in the presence of an objecting co-resident. [1] Fernandez, however, held
that when the objecting co-resident is removed for objectively reasonable
purposes (such as lawful arrest), the remaining resident may validly consent
to search. [2] The 1974 case United States v. Matlock and Georgia v.
Randolph. In Matlock the U.S. Supreme Court laid out the so-called
"co-occupant consent rule". This rule means that anyone who has “common
authority” over the home can consent to a search of the home.[1] The Supreme
Court defined "common authority" as “mutual use of the property by
persons generally having joint access or control for most purposes, so that
it is reasonable to recognize that any of the co-inhabitants has the right
to permit the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area to be
searched.” In essence the court decided that any one person who is a
“joint occupant” can consent to a police search of the shared residence,
without a search warrant. In Georgia v. Randolph the Court limited the
holding of Matlock. In Randolph the court decided that when co-occupants who
are disagreeing whether to let the police search their dwelling the police
can't conduct a search, if a “physically present” co-occupant objects that
search. Fernandez Brief - ABA Brief

US v. Marlon Moore
(9th Cir 2014) No. 13-10464 Argues Georgia v. Randolph, but never reaches
first base where the objector never objects because he allowed his fiance'
to answer the door and "deal with" the police.

United States v. Knights
534 U.S. 112, 121 (2001). If no condition is stated in the probation/parole
document and not otherwise required by law, "reasonable suspicion" governs
the right to search.

PEOPLE v. HAWKINS 211 Cal.App.4th 194 (2012)149 Cal. Rptr. 3d 469 No.
B235415 - Defendant's Document Examiners testify in1538.5 suppression
hearing that the signatures on the consent form are not defendants. Los
Angeles County Sheriff's Detective Adam Kirste makes hearsay testimony about
LA CO document examiner and his opinion that the signatures match, and that
the consent form was signed which enabled defendant's home to be searched
for guns and mj. Hearsay basis was not renewed at trial and not renewed in
the dismiss under section 995, and on that basis was held to be waived.

People v. Ramirez (1988) 202 Cal.App.3d 425 In the related context of
nighttime search warrants, our Supreme Court recently defined the good
cause rule as requiring "'only some factual basis for a prudent
conclusion that the greater intrusiveness of a nighttime search is
justified by the exigencies of the situation."

U.S. v. Johnathan Michael Thomas (CA 9th Cir. 2013) No. 11-10451.
Constitutional use of drug detection dogs: Improper for dog to jump up and
put paws onto the structure being searched. ALSO dog records, and REVERSAL
for suppression. (dog did not indicate)

U.S.
v. Runyan, 275 F.3d 449 (5th Cir.
2001).The government exceeded the scope of a private party search when it
examined, without a warrant, computer disks that the private party provided
but had not viewed.

SEARCH & SEIZURE (cell
phone & computer records)

Rodriguez vs. United States (2015) April 1, 2015. Too long of a
detention, especially adding the time to call for a drug sniff canine unit,
will result in a holding of unreasonable search & seizure. Officers will
need to call for dog units faster, and agencies will need to provide greater
concentrations of dog units in order to make statistical inroads against a
Rodriguez suppression. Potential defendants should time their traffic
stops in order to have a higher probability to prevail in a suppression
hearing.

Riley v. California
(2014) No. 13–132 . Practical Impact of Riley v. California: (1)
Protects Non-arrest detainees from having their phones examined without
first obtaining a warrant. (ticket citation people, persons detained
for questioning, persons being questioned). (2) If you are arrested and any
aspect or fact of the arrest indicates other activity, it will be a simple
matter to get a warrant to inspect your electronic device. (This takes a
short time and can be done by phone). (3) This decision will
erroneously put individuals who carry incriminating evidence in their
electronic devices at ease. They will mistakenly believe that they
have an iron clad wall, when in fact they do not. I have
always wondered why anyone engaged in illegal activity would carry around
incriminating information about it in their pockets and purses, and why they
don't leave it at home where it would at least have a greater threshold of
protection from a legal search. Riley may cause more telephones to
incriminate and convict their owners than was the case before this decision.

People
v. Nottoli 199 Cal.App.4th 531 (2011)
The Nottoli court then goes
into an analysis of search and seizure law, starting with Chimel, then
Belton, then Thornton, and Arizona v. Gant (2009) 129 S.Ct. 1710, and ends
with the following understanding: that vehicles and their compartments can
be searched incident to an arrest (even if the arrestee is already in
custody) when "it is reasonable to believe that evidence of the offense of
arrest might be found in the vehicle." Id. at 1714. Likely overrulled
by Riley v. California, above.

City of
Ontario, Calif. v. Quon , 130 S. Ct. 2619 (2010) Employer Police
Department search upheld despite invading employee's pager records.
Federal Stored Communications act didn't help the outcome. 9th circuit
holding that the search was unreasonable was reversed. Scalia states
that the same case should be in effect for non-public employees as well.

SEARCH & SEIZURE (Warrant
Procedure)

Gordon
v. Everett (11th Cir.July 3,
2012) Filling in names after the warrant is executed is a no-no.

Salinas v. Texas 570 U. S. ____ (2013). If
gestures, involuntary bodily functions, unconscious movement of the head
or eyes can constitute "admissions", then only the dead remain to be
protected by the 5th Amendment. Salinas
Amicus Brief

Robey v.
Superior Court (2011 DJDAR 15551) Fed Ex package was going nowhere,
and there was ample time to obtain a warrant. The opinion noted
that in California Supreme Court case, People v. McKinnon (1972) 7
Cal.3d 899, the officer was allowed to seize the package as he did, but
once he seized it, he was required to hold it unopened until he obtained
a search warrant, unless there were exigent circumstances.

SEARCH & SEIZURE (Curtilage)

US v. Nora
(9th Cir. 2014) Arrest outside of home in violation of Payton requires
suppression and reversal

United States v. Perea-Rey,
2012 WL 1948973 (9th Cir. May 31, 2012): Curtilage based challenge is a win for privacy,
and pronounces "knock and talk" an outdated construction. Illegals run
into garage, agents enter garage and strike up conversation, and then search
house. Held: Illegal search

5TH AMENDMENT RIGHTS

U.S.
v. Morgan , 9 Cir , Case #: 12-10056, 6/3/2013 , DAR #: 7075Case
Holding: Officer who reread Miranda rights to defendant who had already
invoked right to counsel did not impermissibly reinstitute interrogation.
Defendant initially agreed to speak to officers, but then invoked her
right to counsel. An officer reread Morgan her Miranda rights off a
standard form, which was routine procedure. A photo was taken of her with
the drugs. Morgan then said she wanted to speak to officers and admitted
smuggling the drugs. The rereading of Miranda rights and subsequent events
did not constitute a prohibited interrogation. Totality of the arrest
procedure, including the manner in which the drugs were processed and the
taking of Morgan's photo, did not constitute an interrogation.

Gary Kaplan not be required to pay restitution.
Petitioner was still required to pay a mandatory special assessment of $100
per count for every criminal felony count of which he was convicted. No trial
was heldto impose a fine or restitution and whether the defendant has

Whistleblower 22231-12W (1 Hit) View Highlighted
HitsHit(s) [Page 4] a relatively small amount of restitution, reflecting
unpaid Federal income tax credit will be received, but will not cause a
pre-completion adjustment. Civil side and restitution side don't meet until restitution is
fulfilled. Memorandum 8/4/2014

Gregory T. & Sheila J. Campion Memorandum 6/6/2013 $80,095 of restitution to
the Internal Revenue Service and $12,519 of restitution to the Georgia
Department of Revenue. Pled guilty re 2004 tax. 2004 tax year is then
audited. IRS is not estopped by a criminal conviction from re-determining
the civil tax loss.

Tyrone Morgan Cherry Memorandum 1/9/2013 petitioner was ordered to make restitution
payments in that amount. Petitioner did not make any restitution payments in
2005. Petitioner's claims that he made restitution in
that amount in 2008. No gripe about restitution versus civil; no
showing that a refund is due on the cause of overpayment of restitution;
6662(a) penalties as well.

James R. Dixon
TC Opinion 9/3/2013 could be required to make restitution of
this amount. be required to make full restitution for the losses
sustained by plea deals, the boxes marked "restitution" are left unchecked.
-57- acknowledgment Tax in excess of restitution paid.... No refund of
excess paid. Not withheld at the source.

James R. Dixon
Memorandum 9/3/2013criminal-tax defendants to pay restitution as part of
their sentences they called these payments "extraordinary
restitution," though the actual criminal judgments. Dixon can’t have
the credit because they haven’t shown that Tryco with held anythin g.

Owen G. Fiore Memorandum 1/17/2013 He also agreed to pay restitution for the
underpayments from 1996 agreed to an amount of restitution and tax
loss amount. Plea agreement preserved the right to contest civil penalties.

Basem Hassan Memorandum 6/6/2013 $71,478 of restitution. For purposes of
calculating the restitution amount, petitioner's costs of restitution
amount was an estimate. Therefore No collateral estoppel on amounts
established in the plea agreement.

Ronald Isley
TC Opinion 11/6/2013 the adjustment of petitioner's restitution
obligation, a proposed levy where a restitution order, arising out of the
accounting errors, mis application to certain years. OIC "touring" v.
"royalty" income distinction needed to be considered.

Joseph E.
Laciny and Mary A. Laciny Memorandum 4/15/2013 ordered to pay restitution of $195,938,
including principal, interest, and costs & argued that Mrs. Laciny's
restitution payment should be applied but argued that the
restitution payment has no effect on civil tax. Question, is a split
criminal act as similarly having (tax effect / non-tax effect). Embezzlement
creates tax, returned embezzled funds= deduction? (only if taken into
income). Reducing taxable income?

RESTITUTION & TAX - STATE

EXPERT RIGHTS

Hinton v. Alabama
571 U. S. ____ (2014) No. 13-6440 Fund limitation for expert can cut both
ways. (and how can not being able to hire the best expert be held somewhat
equivalent to not being able to hire the best attorney? State experts
refused to re-review their testimony at trial.

CRIMINAL TAX

United States v. Martin
Error in admitting results of an unrelated Idaho state tax audit to
show non-specific knowledge which is baldly prejudicial. Other offenses of
obtaining government contracts without eligibility were not reversed,
despite the possibility of cross contamination by the fact of the Idaho
state tax audit.

U.S. v. PAUL WOMMER
No. 14-10081 D.C. No. 3:12-cr-00078-RCJ-VPC-1 MEMORANDUM, No. 13-10462 D.C.
No. 2:10-cr-00596-GMN-GWF-1 MEMORANDUM * Staunch refusal to pay penalties
and interest after paying taxes owed. Argues that "Penalties and Interest"
are not "taxes" for which tax evasion can be charged. Held: Penalties and Interest
ARE TAXES . (Also corrected sentencing enhancement under § 2S1.3(b)(2)
which requires a
$100,000 threshold. Wormer took $72,500 and deposited $66,200 of this amount
and it was not proper to add these numbers together to reach the $100,000.
Court was correct to deny U.S.S.G. § 2S1.3(b)(3), as the defendant "used"
the money for the unlawful purpose of "evading taxes".

U.S. v. GARY H. LANE,
No. 14-10081 D.C. No. 3:12-cr-00078-RCJ-VPC-1 MEMORANDUM. TWELVE
counts of mail fraud & FIVE counts of ATTEMPTED tax evasion. Two level
sentencing enhancement for sophisticated means§2B1.1(b)(10)(C) (2013) is
proper. Lane knew or should have known that at least one of his victims was
particularly vulnerable goo.gl/qdrJNm

US v. Brown
(9th Cir 2014) 12-10227 In a bankruptcy and tax prosecution, the "100 victim"
enhancement portion of the sentence was reversed and remanded.

U.S. v. Yip
This recent tax case illustrates the use, as far back as late 90's of
the unreported foreign transaction prohibitions as a basis for prosecuting and
increasing the punishment for tax evasion. People tend to ignore Tax Attorney
warnings about FBAR and 6038D and this case illustrates that non-reporting was
dangerous 12 years ago and even more dangerous now.

United States
v. DeMuro Convictions for 18 U.S.C.
section 371, and 21 counts of failure to
account and pay over employment taxes, in violation of 26 U.S.C. section 7202, but
just a "TAD" off in the sentencing computation because--the trial court
applied an enhancement for breaching a position of trust before applying a
reduction on other grounds. Held, on appeal concluded that the DeMuros
were not in a position of trust with respect to the IRS, the appeals court
rejected harmless error because the lower unenhanced sentencing level might
still have been reduced by the court for the same reason and it was
therefore not harmless error. Otherwise the case stands for the
position that even though not seemingly logically related, bad acts evidence
with a secondary flavor is admitted. "Lavish Spending (fomented class
prejudice)" rebuts the defense of "unable to pay taxes"; other cited
mechanisms: personal spending was relevant to their willfulness and
responsibility, as well as the conspiracy charge; "showing the ways a
[defendant] was spending her time - traveling to Florida, buying cars,
purchasing and overseeing the decoration of her two million dollar home
rebuts a charge that defendant was "too busy" to pay her taxes; "existence
of an unexpected additional two million dollars to spend on themselves."
(increase in money available for spending) is relevant to the defense of "simply forgot to pay her tax liability; evidence regarding a defendant's
ability to pay taxes is pertinent/relevant to whether an offense has been
committed under section 7202, since it bears on the willfulness of the defendant's
failure to pay over withheld tax to the government.., other fraud and theft
is relevent in that a choice to spend fraud money on personal items rather
than the delinquent taxes reflects that she regarded her known obligation to
pay the trust fund penalty with little urgency. Involvement in bad personnel
decisions to "run off" an employee is relevant to control over financial
affairs at the company. Evidence which is UNFLATTERING (above) will be used
and failure to use evidence code 403 will not be used to reverse on appeal.
-- FURTHER: "Jury Nullification potential" was used to eliminate evidence
of civil efforts to settle, facts of transition to criminal and whether
Defendants knew it.

US v. MARIA LOURDES MOE (9th Cir. 2015) No. 13-30224, D.C.
No.6:13-cr-000 Rejecting the defendant’s contention that the evidence
presented to the jury established only a buyer-seller transaction, the panel
held that the evidence was sufficient to support her conviction for
conspiracy, where the evidence indicated an ongoing relationship of mutual
trust, there was testimony that the defendant was involved in the
business of methamphetamine trafficking, there was evidence that the
defendant’s supplier knew that the defendant was engaged in redistributing
the methamphetamine that she was buying from him, and the supplier had an
interest in fostering those downstream sales. The panel held that the
district court did not err by failing to instruct the jury on how to
determine a single conspiracy versus multiple conspiracies, where the
defendant stood trial alone and the facts to do not support a multiple
conspiracies defense. The so-called “buyer-seller rule,” under which a
conviction for conspiracy cannot be based solely on the purchase of an
unlawful substance, even though such a transaction necessarily involves an
agreement between at least two parties, the buyer and the seller.

These are indications of an ongoing relationship of “mutual trust,” beyond a
simple buyer-seller transaction.

That Ellifritt might have had
dealings with others did not tend to disprove the possibility of the alleged
conspiracy between Moe and Ellifritt. Thus, the district court did not err
by limiting the cross-examination of Ellifritt to the conspiracy that was
charged.

USA V. DAVID TAMMAN (9th Cir. 2015) No. 13-50463 Piling on: (1) no time
to hear two proffered experts; (2) admitted the statement of alleged
coconspirator; Beware provisional exclusions.district court specifically
indicated that it only excluded Dinehart’s testimony as written and gave
Tamman the opportunity to revise and resubmit the opinions, making it clear
that the ruling was provisional. To preserve the error for appeal, Tamman
would have needed to make an offer of proof to the district court, outlining
the testimony that was excluded.

(“[The] contention that the mere
filing of a motion in limine preserves for appeal the issue of the
admissibility of the evidence to which the motion is directed is without
merit.”).

United States v. Bishop, 291 F.3d 1100, 1108 (9th Cir.
2002) (“In the absence of an offer of proof . . . reversal will lie only
where there is plain error.” (internal quotation marks omitted)).

Under Federal Rule of Evidence 801(d)(2)(E), a statement of one
coconspirator is admissible nonhearsay against other coconspirators as an
admission of a party-opponent, if the statement was made during the course
of and in furtheranceof the common objectives of the conspiracy.
“Although mere conversations or narrative declarations between
coconspirators are not in themselves sufficient to invoke the exception to
the hearsay rule, statements made to keep coconspirators abreast of an
ongoing conspiracy’s activities satisfy the ‘in furtherance of’
requirement.” United States v. Williams, 989 F.2d 1061, 1068 (9th Cir.
1993). Los Angeles District Court Ezra, David Criminal 04/03/2015

United States v. Meredith
, 685 F .3d 814, 819 (9th Cir.), cert. denied , 133 S.Ct. 536 (2012)
Conspiracy to defraud the United States, mail fraud, false representation of
a Social Security number, passport fraud, and failure to file income tax
returns. Their convictions arose from their participation in businesses that
helped customers evade federal and state income taxes. Meredith wrote two
books, “How to Cook a Vulture" and “Vultures in Eagle’s Clothing, ” which
explained how people could stop paying income taxes. First Amendment
exception that allows the government to regulate speech that is integral to
criminal conduct is the heart of the appeal. 18 U.S.C. § 371. To prove a
conspiracy under the “defraud clause” of this statute, “the government need
only show (1) [the defendant] entered into an agreement (2) to obstruct a
lawful function of the government (3) by deceitful or dishonest means and
(4) at least one overt act in furtherance of the conspiracy. (United States
v. Caldwell , 989 F.2d 1056, 1059 (9th Cir. 1993)). Held: here was
sufficient evidence for the jury to conclude the defendants engaged in a
conspiracy that was not protected by the First Amendment

Meruelo v. Commissioner
(Taylor) 11-70015 Commissioner of Internal Rev Tax Court 08/16/2012.
When (1) no partnership-level proceeding is
pending, (2) no notice of final partnership administrative adjustment
("FPAA") has been issued, and (3) the normal three-year statute of
limitations in 26 U.S.C. section 6229(a)1 has not expired, the Tax Court has
jurisdiction. NOD issued when no partnership-level proceeding or FPAA have
been issued is valid.

CALIFORNIA RADOMES, INC.; et al., v. COMMISSIONER OF INTERNAL REVENUE
(9th Cir. 2015) No. 12-73702 (Tax Ct. Nos. 6182-10 6178-10) 75% Penalty for
underpayments with fraudulent intent. Badges of fraud include implausible or
inconsistent explanations of behavior, inadequate records, concealing
assets, and failure to cooperate with tax authorities. Reliance on
accountant to file taxes properly is not a defense. Taxpayers did not
establish that the omitted account records existed, far less than that they
were supplied to the preparer.

KURT SOLLBERGER V. CIR
11-71883 Commissioner of Internal Rev Tax Court 08/16/2012. Complex series of Loan Transactions are exposed as
a sham and income tax liability is established.

Sims v. Superior Court
(People) (1993) 18 Cal. App. 4th 463 [22 Cal. Rptr. 2d 256] Tax Fraud case
depended upon testimony of investigator for the Franchise Tax Board and the
question in this case is whether he qualifies as a "law enforcement officer"
to enable his testimony to become permissible hearsay.

M.H. v. U.S.,
(CA 9 8/18/2011) 108 AFTR 2d 2011-5880, The district court concluded that
under the Required Records Doctrine, the Fifth Amendment did not apply; and
under a line of disturbing grand jury cases the 5th amendment is being
eroded to non-existence where reporting under foreign bank account reporting
(FBAR) record keeping and reporting is concerned.

United States v. Coplan
(2nd Cir Nov29, 2012) Defendants ten challenges to their respective
convictions summarized as: (1) the Government's Klein conspiracy
theory was legally invalid, (2) there was insufficient evidence to support
(a) the convictions of Shapiro and Nissenbaum on Count One, the conspiracy
charge, (b) the convictions of Shapiro and Nissenbaum on Counts Two and
Three, the tax evasion charges, and (c) Nissenbaum's conviction on Count
Four, the obstruction charge, (3) the District Court erred in finding that
venue was proper for Count Six, which charged Vaughn with false statements
to the IRS, (4) the District Court erred by admitting the testimony of
alleged coconspirator Graham Taylor, a tax attorney who committed a variety
of crimes involving tax shelters unrelated to this case, (5) the District
Court erred in admitting the out-of-court statements of more than 20 alleged
coconspirators, (6) the District Court erred in excluding portions of Coplan's and
Vaughn's deposition transcripts, (7) the defendants were prejudiced by prosecutorial misconduct in the
Government's rebuttal summation, (8) the District Court erred in (a) declining to give a "theory of
the defense" instruction, (b) instructing the jury on a conscious avoidance theory; and (c) instructing
the jury that "economic substance" existed only if there was a "reasonable possibility" of profit,
(9) spillover prejudice infected Coplan's and Vaughn's remaining convictions, and (10) Bolton's sentence
was procedurally and substantively unreasonable.

Sims v. Superior Court
(People) (1993) 18 Cal. App. 4th 463 [22 Cal. Rptr. 2d 256] Tax Fraud case
depended upon testimony of investigator for the Franchise Tax Board and the
question in this case is whether he qualifies as a "law enforcement officer"
to enable his testimony to become permissible hearsay.

BOULWARE v.
UNITED STATES - certiorari to the united states court of appeals for the
ninth circuit. No. 06–1509. Argued January 8, 2008—Decided March 3, 2008

Bryan v. United States, 524 U.S. 184
(1998), here. Bryan is not a tax case, but has interesting discussion of the
willfulness element for tax crimes)

Cheek v. United States, 498 U.S.
192 (1991), here. Cheek is the latest of the Supreme Court's major cases on
willfulness, which is required for most tax / Title 26 crimes.

Hammerschmidt v. United States, 265 U.S. 182 (1924), here. Hammerschmidt now
is the leading case on the defraud conspiracy. In a tax setting, this type
of conspiracy with the Hammerschmidt spin on it is known as the Klein
conspiracy, after United States v. Klein, 247 F.2d 908 (2d Cir. 1957), cited
below.

Holland v. United States, 348 U.S. 121 (1954), here. Holland is a leading
case on the indirect methods of proof in criminal tax cases.

James v.
United States, 366 U.S. 213 (1961), here. James is the fountainhead of
jurisprudence for proposition that evasion requires that the taxpayer both
know the law he intends to evade (a subjective determination for the trier
of fact) and the law must be knowable (an objective determination for the
judge).

Rutkin v. United States, 343 U.S. 130 (1952), here. Rutkin
was a predecessor case that required the Supreme Court to render the James
decision.

Sansone v. United States, 380 U.S. 343 (1965), here.
Sansone deals with potentially overlapping tax crimes and the concept of
lesser included offense. It also condones the claiming of previously
unclaimed tax deductions in the case in chief in a tax crimes case (a gambit
which is now more limited as a means to mitigate the tax loss in the
application of the sentencing guidelines).

United
States v. Caldwell, 989 F.2d 1056, 1058 (9th Cir. 1993), here. Caldwell is
powerfully rejects the notion that the defraud / Klein conspiracy can apply
if all the defendant does is make the IRS's job harder. Similar reasoning
would probably applied to tax obstruction, Section 7212(a)>

United States v. Ingredient Technology, 698 F.2d 88 (2d Cir. 1983), here.
Ingredient Technology offers learning on several key concepts in tax crimes.
Click on the case and read the opening paragraph for its flavor.

United States v. Klein, 247 F.2d 908 (2d Cir. 1957), here. Klein is the
leading defraud conspiracy case in a tax setting. It applies Hammerschmidt.
Defraud conspiracies in a tax setting are called Klein conspiracies.
Sometimes outside a tax setting, they are called Klein conspiracies, but it
seems to me that they should more properly be called Hammerschmidt
conspiracies outside the tax setting.

United States v. Pinkerton, 328
U.S. 640 (1946), here.

United States v. Stein, 541 F.3d 130 (2d Cir.
2008), here. The then largest tax fraud case in history, involving KPMG
defendants. This criminal case spawned many opinions. This one is probably
the most significant. Thirteen defendants were dismissed for prosecutorial
abuse -- forcing KPMG to cut off attorneys fees for those defendants.

United States v. Letantia Bussell, (Bussel II) 504
F.3d
956 , (9th Cir. 2007)Letantia Bussell (“Letantia”) is a
practicing dermatologist.1 Her late husband, John Bussell, was a practicing
cardiac anaesthesiologist until 1992. In 1992, the Bussells were
expe­riencing significant financial difficulties. They owed the Inter­nal
Revenue Service (“IRS”) and the California State Franchise Tax Board
approximately $1.2 million in taxes, interests, and penalties assessed for
tax years 1983, 1984, 1986, and 1987. They also owed the Bank of Beverly
Hills $787,500.00. Upon the advice of their former lawyers, the Bussells
orga­nized the dermatology practice into a three-tiered structure in 1992.
The new arrangement separated the business and medi­cal aspects of
Bussells’s practice: BBL Medical Management, Inc. (“BBL”) received the
practice’s gross receipts, paid the expenses and overhead, and retained the
profits; Beverly Hills Dermatology Medical Corp. (“Beverly Hills
Medical”) received 10% to 20% of BBL’s profits and employed Letantia through
her professional corporation, L.B. Bussell, MD, Inc. (“L.B. Bussell,
Inc.”), for an artificially reduced salary. BBL and Beverly Hills Medical
were held in the names of nominee owners; Letantia was the sole
shareholder and officer of pub­lic record of L.B. Bussell, Inc. The Bussells
further enlisted the help of their former lawyers in 1993 to set up
various cor­porations to conceal ownership of a four-unit condominium in the
Stein-Ericksen Lodge in Park City, Utah (the “Utah con­dominium”), a San
Diego farm, and receipt of disability insur­ance income. The Bussells also
opened an off -shore bank account to receive funds from John Bussell’s
pension plan. On March 7, 1995, the Bussells, together with their former
lawyers, filed a joint bankruptcy petition. The Bussells facts
are set out at length in our prior opinion in Letantia’s first appeal, we
will only briefly discuss the relevant facts here. See United States v.
Bussell (Bussell I), 414 F.3d 1048 (9th Cir. 2005). Bussells reported total
assets of $1,783,026.30 and total debts of $4,677,194.22 on that petition.
The amount of debt scheduled for discharge totaled $3,057,927.09, but
the bankruptcy court only discharged debt of $2,293,527.09 because a
liability of $764,000.00 to Provident was at issue in pending
litigation. Following the bankruptcy discharge, Letantia was charged in
a 17-count indictment, along with two co-defendants, with conspiracy,
concealment of assets in contemplation of bank­ruptcy, making false
declarations, perjury, and attempted tax evasion. At trial, the Bussells
argued that they had acted in good faith and relied on the advice of their
lawyers. Bussell I, 414 F.3d at 1052. After jury deliberations had
begun, John Bussell fell to his death from his hotel room. Id.
In
Bussell I, we held that the amount of restitution under the Victim and
Witness Pro­tection Act (“VWPA”), 18 U.S.C. § 3663(a), which applies to
this case, is “limited by the victim’s actual loss.” Bussell I, 414 F.3d at
1061 and was equal to the amount of intended losses.Because
“[r]estitution can only include losses directly resulting from a defendant’s
offense,” “a restitution order must be based on losses directly
resulting from the defen­dant’s criminal conduct.” Stoddard, 150 F.3d at
1147: actual loss for restitution purposes is determined by comparing “
‘what actually happened with what would have happened if [the defendant]
had acted law­fully.’ ” 414 F.3d at 1061

The district court concluded
on remand that had Letantia acted lawfully by not engaging in a conspiracy
to conceal sub­stantial assets and income leading up to the filing of
the bank­ruptcy petition, and had she made full and complete disclosure of
her financial affairs at the time of filing the bankruptcy petition, she
would not have had $2,293,527.09 of debt discharged in bankruptcy.
Accordingly, the district court concluded that the actual loss equaled
that amount.

PSR then valued the concealed assets at between
$2,849,835.00 and $3,356,835.00. Defendant says that total value of
assets is $1,783,026.30. Its not good to continue to hide assets or
ask for only some assets to be considered in the restitution judgement or
sentencing guidelines.

USA V. THOMAS JENNINGS
11-50315 Los Angeles District Court Criminal 04/03/2013. Sophisticated means can include a mere split bank
accounting system. "We affirm the district court's application of the
enhancement. Conduct need not involve highly complex schemes or exhibit
exeptional brilliance to justify a sophisticated means enhancement.. Use of bank
account with deceptive name was sufficient to support application for a
sentencing enhancement.

U.S.
v. Murphy 516 F.3d 1117, Roper did not know that Murphy had
previously refused consent . We see no reason, however, why Murphy's
arrest should vitiate the objection he had already registered to the
search.

United States v. St. Pierre,
599 F.3d 19 (1st Cir. 2010) Importance of evidence and a suggestion that
Rule 403 of the Federal Rules of Evidence, which allows the exclusion of
evidence whose probative value is substantially outweighed by competing
considerations (e.g., capacity to mislead or prejudice the jury)
could violate the Sixth Amendment right to present a defense and
misapplied the rules of evidence. The constitutional right to present a
defense under the Sixth Amendment is subject to reasonable regulation,
United States v. Scheffer,523 U.S. 303, 308, 118 S.Ct. 1261, 140
L.Ed.2d 413 (1998); Taylor v. Illinois,484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d
798 (1988), and a judge ordinarily has wide latitude in administering
Rule 403. United States v. Kepreos,759 F.2d 961, 964 (1st Cir.),
cert.
denied, 474 U.S. 901,
106 S.Ct. 227, 88 L.Ed.2d 227 (1985).

United
States v. Wanland (ND CA 5/3/2013) No. CR. S-09-008 LKK.
Separateness of Bankruptcy Court and Federal District court is utilized
to compartmentalize taxpayer criminal rights protections with respect to
admissions and cooperation occurring closely in time in the bankruptcy
court. Could a motion to withdraw the reference have made a
difference?

United States v. Michael Chen (9th Cir. 2014) Memorandum. (1)
Giving documents to the government waives your attorney client
privilege, (2) Mailing of false state tax returns is an offense under 18
U.S.C. § 1341, (3) Defendant not entitled to reduce tax loss for
unclaimed deductions under 2T1.1 (although from a memorandum opinion
defendant gets no real explanation as to why he could not be given
credit for unclaimed deductions. Sentencing timing? Memo
opinion didn't say when he was sentenced.

LAW ENFORCEMENT MISREPRESENTATION

United
States v. Meek, 366 F.3d 705, 711–12 (9th Cir. 2004); In Meek,
police officers identified and located a minor whose sexually explicit
photographs were found online. With his father’s and minor's consent,
computer was tured over to authorities who pretended to be the minor.
Meet was arrested after arrangement to meet the minor. validity of the
warrant challenges; in essence they boil down to a claim that Meek did
not know his correspondent was a minor. Held: Sufficient probability,
not certainty, is the touchstone of reasonableness under the Fourth
Amendment.

FEDERAL STALKING

U.S. v. Christopher Osinger (9th Cir 2014) No.
11-50338D.C. No. 2:10-cr-00758-ODW-1 Very unusual federal stalking
prosecution based upon following from Illinois to California, and posting nude
pictures of the victim on the internet along with "horrible content". The jury
found Osinger guilty. The challenge on appeal is 18 U.S.C. § 2261A
proscribes harassing and intimidating conduct, it is not facially invalid under
the First Amendment. There is a lot of equivocating here: (1) A jury
found intent, (2) "According to Osinger, he intended to plead guilty and
proceeded to trial only to preserve his constitutional challenge to 18 U.S.C. §
2261A." (3) Part of the appeal is his being denied a downward departure under
the guidelines for "Acceptance of Responsibility", (4) Defendant argued his 1st
amendment defense to the jury. Citation in the appeal that defendant
wanted credit for "cooperation" (typically encountered in connection with a
guilty plea), and the admission that he "intended to plead guilty" both seem to
undercut a first amendment challenge on appeal as not genuine.

SUMMONS & PRIVILEGE

In re GRAND JURY SUBPOENA FOR
ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo
REYES-REQUENA.
(5th Cir 1990) 913 F.2d 1118 59 USLW 2245, 31 Fed. R.
Evid. Serv. 1167, No. 89-6252. Southern District of Texas issued a
subpoena to Mike DeGeurin directing him to appear on September 29 and
produce records dealing with the fee arrangement he had made for
representing Reyes-Requena. DeGeurin filed a motion to quash, supported
by his affidavit. Amici curiae representing various organizations moved
to intervene and support DeGeurin. Neither DeGeurin nor the government
proffered evidence for in camera inspection. Position: prosecutor
now seeks to determine the amount of DeGeurin's fee and the identity of
the person who has agreed to pay it. It is De Geurin's opinion and
belief that for me to reveal the amount of the fees, how it was paid,
fee agreements and whether a third party was involved would violate my
client's Fifth and Sixth Amendment rights, would violate his due process
rights to a no-bill by the Grand Jury, could provide evidence against
client as an "affirmative link" to the contraband sufficient to assure
his indictment and conviction, could subject him to greater penalty
under the Federal Sentencing Guidelines and would be in violation of
Canon 4 of the Code of Professional responsibility. In addition,
responding to the complaint that DeGeurin's grand jury testimony would
force him to be a witness against his client and would provoke his
disqualification. Government stated that it would not "use"
"fee information" against Reyes-Requena before the grand jury or at his
trial. Judge Hittner's thoughtful opinion rejected the last two
grounds urged by DeGeurin, but it found the first three arguments
persuasive. Judge Hittner particularly relied upon his interpretation of
Jones as establishing an attorney-client privilege that shielded
DeGeurin from revealing fee information concerning Reyes-Requena,
including specifically whether a third party benefactor had paid
Reyes-Requena's fees. He found the timing of the issuance of the
subpoena, i.e., during the pendency of criminal proceedings against
Reyes-Requena, to be relevant. He found that the attorney-client
privilege was not being invoked as a shield for continuing illicit
activity.

JOSEPH W. SULLIVAN v. WILLIAM F. HARNISCH
(Ct. Appeals N.Y. 5/8/2012) 19 N.Y.3d 259 (2012); 2012 NY Slip Op 3574
"central professional purpose" for associating with the employer was
"the lawful and ethical practice of law" and thus the ethical limitation
may be imposed upon the employer - employee relationship.

Mollison v. United States (CA 9th 2009) Motion to Quash Summons, 20
days to commence proceedings; 120 day period to serve the motion on the
United States, is valid.

UNITED STATES V. SIDEMAN & BANCROFT, LLP (9th Cir. January 8, 2013)
In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court
explained that where an individual transfers documents to his or her
attorneys to obtain legal assistance in tax investigations, those
documents, “if unobtainable by summons from the client, are unobtainable
by summons directed to the attorney by reason of the attorney-client
privilege.” Id. at 405. Accordingly, Sideman does not have to produce
the tax records if doing so violates Nolan’s Fifth Amendment rights.
“where ‘[t]he existence and location of the papers are a foregone
conclusion and the taxpayer adds little or nothing to the sum total of
the Government’s information by conceding that he in fact has the
papers[,] . . . enforcement of the summons’ does not touch upon
constitutional rights.” Government has established that it is able
to independently authenticate the summonsed records. Sideman also
contends that Nolan should be granted “act­of-production” immunity prior
to Sideman’s being compelled to turn over Nolan’s tax records, some of
which were prepared by Nolan herself. In support of its argument,
Sideman cites to a 2001 under-seal proceeding in the Northern District
of California to which Sideman was a party. See In re Grand Jury
Subpoena to Richard Sideman, Sideman & Bancroft LLP, Dated June 14,
2001, No. CR-01-219­MISC-MHP (N.D. Cal. Mar. 3, 2001). In that
proceeding, the district court ruled that Sideman’s production of
certain tax records of its client would “implicitly authenticate” those
records, i.e., act as an admission that the documents were authentic.
However, merely because Nolan prepared some of the records
personally is not necessarily an impediment to applying the foregone
conclusion exception to the Fifth Amendment protection against
testimonial production.Based on the facts found, which we hold were
not clearly erroneous, we conclude that the district court did not err
in applying the foregone conclusion exception when enforcing Sideman’s
compliance with the summons.

Common Complaints:Failing to sign tax returns they prepareFailing to
use a Preparer Tax Identification Number or using an invalid PTINFailing
to provide clients a copy of their tax returnFailing to return a
client's recordsPreparing tax returns with a client's last pay stubCreating false exemptions or dependentsCreating false expenses,
deductions or creditsCreating or omitting incomeUsing an incorrect
filing statusAltering documentsEmbezzling a client's refundUsing
off-the-shelf software or IRS Free File instead of professional softwareFalsely claiming to be an attorney, certified public accountant, enrolled
agent, registered tax return preparer, enrolled retirement plan agent, or
enrolled actuaryIf you have a complaint, report it on
Form 14157,
Complaint: Tax Return Preparer. Complete the form and mail it to:Internal Revenue ServiceAttn: Return Preparer Office1122 Town &
Country CommonsChesterfield, MO 63017-8200

In the case of
Booska v. Patel (1994) 24 Cal. App. 4th 1786, the California
Court of Appeal held that a neighbor does not have the absolute right to cut
encroaching roots and branches so that they end at his or her property line.
You must take into account the health of the tree before you start trimming,
cutting or chopping. You might be liable for reasonable costs of replacing
destroyed tree with identical or substantially similar tree.

PC 801.5. Notwithstanding Section 801 or any other
provision of law, prosecution for any offense described in subdivision (c)
of Section 803 shall be commenced within four years after discovery of the
commission of the offense, or within four years after the completion of the
offense, whichever is later.

Transfers to a Foreign Controlled CorporationIf appreciated assets are transferred to a foreign
corporation, §351 generally does not apply. IRC § 367(a) specifies that the
corporation “shall not be considered as a corporation” unless certain
additional criteria are satisfied. The effect of this treatment is that the
transferors must recognize the gain realized on the transfer of appreciated
property to the foreign corporation unless the special criteria of IRC
§ 367(a) are satisfied. Only if the corporation satisfies these requirements
(primarily treating certain properties as sold to the transferee foreign
corporation) will the remaining portion of the transaction fall under the
umbrella of IRC § 351 and, thereby, qualify for tax-free treatment.

"Pursuant to 31 C.F.R. § 103.32, all U.S.
holders of foreign bank accounts are required to create and retain certain
records regarding those accounts for a period of five years. Those who
willfully fail to retain such records may be criminally prosecuted under 31
U.S.C. § 5322(a)."

Bankruptcy

But we do not read the discovery provision
contained in Cal. Civ. Code § 3439.09(a) as literally as Shoshana does. We
believe that the one-year period under Cal. Civ. Code § 3439.09(a)’s
discovery rule does not commence until the plaintiff has "reason to discover
the fraudulent nature of the transfer"

Dyanlyn
Two v. County of Orange, Court of Appeal of California, Fourth
District, No. G049269, filed January 30, 2015, and certified for
publication February 23, 2015, County of Orange’s property tax
reassessment of a retail shopping center located in the City of
Westminster.

Kunkle v. C.I.R. TCM 2015-71reiterates the need for cash businesses
to maintain proper books and records. 6662 imposes a 20% penalty upon
the portion of any underpayment attributable to (among other things)
negligence or disregard of rules or regulations. The term “negligence”
includes any failure to make a reasonable attempt to comply with the tax
laws, and “disregard” includes any careless, reckless, or intentional
disregard. Sec. 6662(c). Negligence also includes any failure to keep
adequate books and records or to substantiate items properly. Sec.
1.6662-3(b)(1), Income Tax Regs.; see Olive v. Commissioner, 139 T.C.
19, 43 (2012). "Section 6662 imposes a 20% penalty upon the portion of
any underpayment attributable to (among other things) negligence or
disregard of rules or Regulations.

Some taxpayers may claim that
record keeping is too burdensome or that they have Fifth Amendment
concerns about possibly providing governmental agencies with data which
could be used against them. Such businesses and business owners include
bars and restaurants, convenience stores , marijuana dispensaries and
all other businesses that receive cash payments from customers as a
significant part of their revenue. However, as can be seen from the
above quote, there are penalties, both civil and criminal that can be
imposed for failure to maintain accurate books and records. The cited
civil penalty is just the beginning, for the potential for a 75% civil
Fraud penalty exists as well as prosecution exist. There are
opportunities to minimize penalty exposure based upon reasonable cause.

"Section 6664(c)(1) provides an exception to the imposition of the
accuracy-related penalty if the taxpayer establishes that there was
reasonable cause for, and that he acted in good faith with respect to,
the underpayment. The decision as to whether the taxpayer acted with
reasonable cause and in good faith is made on a case-by-case basis,
taking into account all pertinent facts and circumstances. See sec.
1.6664-4(b)(1), Income Tax Regs. Circumstances that may signal
reasonable cause and good faith "include an honest misunderstanding of
fact or law that is reasonable in light of all of the facts and
circumstances, including the experience, knowledge, and education of the
taxpayer."

Gurule v. Comm'r (U.S.T.C., 2015) KEVIN R. GURULE AND DAWN M. GURULE
v. COMMISSIONER OF INTERNAL REVENUE, T.C. Memo. 2015-61, Docket No.
13323-13L. March 31, 2015 Realizable equity of Mr. Gurule's section
401(k) plan account by reducing the fair market value of $71,704 by 30%
to account for Federal income tax and then subtracting a loan balance of
$33,750. Internal Revenue Manual (IRM) has a three - step procedure for
levying upon retirement accounts and instructs IRS employees to levy
upon these accounts only if (1) a taxpayer's conduct has been flagrant 8
and (2) the taxpayer does not depend on the funds in the account to pay
necessary living expenses, taking into account any special circumstances
such as extra ordinary expenses. 9 IRM pt. 5.11.6.2 (Dec. 2, 2011);
see Wadleigh v. Commissioner , 134 T.C. 280, 294 - 296 (2010)
(discussing the IRM provision that addresses the Commissioner's ability
to levy upon retirement accounts)

CATHERINE MARIE NUNEZ v. CIR, (9th Cir 2014) No. 13-70923; Tax Ct.
No. 15168-10. Don't like the result after the Commissioner agrees
with you but the Tax Court doesn't? Challenge based upon "vanishing
jurisdiction"

Ridgely v. Lew, case no.
1:12-cv-00565 (CRC), U.S. District Court for the District of Columbia
Section 10.27 of Circular 230 has traditionally included restrictions on
contingent fee arrangements between taxpayers and their
representatives. In July 2014, however, those restrictions were struck
down by the U.S. District Court for the District of Columbia "with
respect to the preparation and filing of Ordinary Refund Claims,
where 'preparation and filing' precedes the inception of any examination
or adjudication of the refund claim by the IRS and any formal legal
representation on the part of the practitioner." The Court ordered
that the government was permanently prohibited from enforcing the
applicable restrictions in Circular 230. July 16, 2014, docket entry
49

In re Richard John Rinard (Richard John Rinard, Debtor and Helen R.
Frazer, Chapter 7 Trustee v. Positive Investments, Inc. (BAP 9th Cir.) 2011.
Stands for the proposition that loss of the automatic stay only loses
personal protection of the debtor and the debtor's property which is not
property of the estate. Property of the estate remains property
of the estate

Hinerfeld v. Commissioner,
(2012) 139 T.C. 10, the Tax Court has held that communications between IRS's
Appeals Division and Area Counsel regarding an amended offer in compromise
(OIC) did not fall in the category of prohibited "ex parte" communications.

CRIMINAL POLICY CASES

Apprendi Related

U.S. v. Gerald Green
(9th Cir. 2013) After bribing foreign officials, the defendants
allege that the district court violated Apprendi v. New Jersey, 530
U.S. 466 by ordering defendants to pay restitution even though a
jury's finding that there was an identifiable victim was lacking.
In this non-en-bank decision,
Southern Union Co. V. United States 132 S.Ct. 2344 (2012) which
held that Apprendi applies to the fact - finding need to trigger
criminal fines is "not clearly irreconcilable with a potential fact
that "Apprendi may not apply to restitution".

Restitution

US v. Luis (9th Cir. 2014) MVRA's "offense against property" agreed
definition is expanded to enable a wider scope of restitution to more cases.

U.S. v. Booth, 309 F.3d 566 (9th Cir. 2002). Court discretion decides
whether there is sole, apportioned, or jointly and several liability for
restitution. 18 U.S.C.A. section 3664(k) can be used to modify a decision.

U.S. v. AURORA LOPEZ-AVILA: Prosecutorial Misconduct (1)
retrial is barred underOregon v. Kennedy's "goading" exception to the
usual rule that double jeopardy does not bar retrial where a mistrial is
granted with the defendant's consent, and (2) retrial is barred by the
Arizona Supreme Court's interpretation of its state constitutional
protection against double jeopardy, which interpretation is incorporated
into federal proceedings in Arizona through 28 U.S.C. section 530B.

Presley v.
Georgia, 558 US 130 SCt 721, 724 (2010) Right to a Public Trial,
including the Sixth &Fourteenth Amendment right to a public trial was
violated when the trial court excluded the public from the voir dire of
prospective jurors.

Padilla v. Yoo (9th Cir 2012) No. 09-16478. Suing former
government officials for old decisions is like trying to second guess
everything in government.

U.S. v. Johnson
(CA 9th May 29, 2012) 18 U.S.C.section924(a)(1)(A) making false
statement with respect to information required to be kept by a federal
licensed firearms dealer does not require that false statement relate to
lawfulness of underlying sale [to the ultimate buyer]) ("actual buyer"
question on ATF form is required information, and proof that defendant
falsely identified himself as actual buyer at time of purchase was
sufficient for conviction) (instruction on witness credibility was
sufficient).

Carr v. U.S.
560 US (2010) Argued February 24, 2010—Decided June 1,
2010; Sex Offender and Registration and Notification Act does not apply to
sex offenders whose interstate travel occurred before the statute's
effective date.

UNITED STATES OF AMERICA, No. 11-50094
Plaintiff-Appellee, v.
JONATHAN LEAL-DEL CARMEN,
OPINION Defendant-Appellant. No deportations to manipulate the criminal case.

United States
v. Wells, 519 U.S. 482 (1997) Defendant owed nearly $100,000 in
back-taxes and penalties, but failed to disclose $6k in debt payments.
Held materiality of falsehood is not an element of the crime of knowingly
making a false statement to Fed Insured banks.

U.S. v. Mitchell (ND IA ) ORDER:
Denied in Part and Grantedin Part:18 U.S.C. section 152(3) requires materiality.
Defendant owed nearly $100,000 in back-taxes and penalties. Defendant claims
that any failure to disclose the debt payments (which he characterizes as
amounting to around $6000) as income was immaterial because the amount
allegedly concealed was less than $100,000; because the federal and state taxing
authorities had first priority in the bankruptcy estate assets, Defendant
claims his creditors were not harmed and therefore the false statements
could not have affected the outcome of the bankruptcy proceeding. AKA("if I owe bigger people, I can lie about
small change) or (If I have no assets, it won't matter if I lie) In
the alternative, Defendant claims the court violated his due process rights
when it effectively changed the crime charged in the Indictment in the
middle of trial. See, e.g., United States v. Johnston, 353 F.3d 617, 623
(8th Cir. 2003) (holding constructive amendment of indictment is reversible error per
se); see also United States v. Griffin, 215 F.3d 866, 868-69 (8th Cir. 2001)
("A jury instruction constructively amends an indictment if it modifies the
essential elements of the offense charged in the indictment."). The
Defendant also claims it is unfair that he should bear the burden of an
appeal when current Eighth Circuit Court of Appeals precedent is in his
favor.
First, the Supreme Court examined the text of the statute. Wells, 519 U.S.
at 490. The Court noted that the statute does not, on its face, require
materiality. Id. To the contrary, it criminalizes "any" false statement. Id.
Second, the Supreme Court examined the common-law meaning of the terms in
the statute. The Court recognized it "presume[s] that Congress incorporates
the common-law meaning of the terms it uses if those terms have accumulated
settled meaning under the common law and the statute does not otherwise
dictate." Id. at 491 (citations and internal quotation marks omitted). The
Court noted that there was no showing that the term "false statement" had a
settled meaning at common law, let alone one requiring materiality. Id. Third, the Supreme Court
examined the legislative history of 18 U.S.C. section 1014. Id. at 492. The
legislative history confirmed the Court's conclusion that the statute did
not require materiality. Id. The court determined Congress enacted 18 U.S.C.
section 1014 as part of a general recodification of the criminal code. Id. The new
criminal code included other provisions involving false representations that
expressly required materiality. Id. at 492- 94. It also determined 18 U.S.C.
section 1014 consolidated thirteen statutes concerning false representations. Id.
Ten of the thirteen statutes 18 U.S.C. section 1014 brought together did not contain a materiality requirement before
recodification; three of the thirteen contained express materiality
requirements before recodification. Id. at 493. "The most likely inference,"
the Court concluded, "is that Congress deliberately dropped the term. Unlike the statute at issue in
Wells, there are two terms in 18 U.S.C. section 152(3)—"fraudulently" and "under
penalty of perjury"— that, taken together, indicate materiality is required.
Because the statutes used the term "fraudulent,"the Court "presume[d] that Congress intended to
incorporate materiality ‘unless the statute otherwise dictates.'" Second, 18 U.S.C. section 152(3),
unlike the statute at issue in Wells, also requires that the false statement
be made "under penalty of perjury." 18 U.S.C. section 152(3). Like fraud, perjury
required materiality at common law. The legislative history of 18 U.S.C.
section
152(3) also indicates materiality is an element of the offense. The statute
was enacted in 1976 as part of Public Law 94-550. Pub. L. 94-550, 90 Stat.
2534, 1976 HR 15531 (approved October 18, 1976). The House Committee on the
Judiciary stated that "[t]he purpose of [Public Law 94-500] is to permit the
use in Federal proceedings of unsworn declarations given under penalty of
perjury in lieu of affidavits." H.R. Rep. No. 94-1616. At the time, oaths
were required in a variety of proceedings, resulting in great inconvenience
and heavy reliance upon notaries. Id. The legislation was designed to
provide a convenient alternative to affidavits and sworn documents, by
simply "permit[ting] the signer to subscribe to a document that expressly
provides that it is being executed subject to the penalties of perjury . . .
." Id. It is clear, however, that Congress contemplated that penalties of
perjury would still apply; although the legislation dispensed with the
formality of the oath, the substance and consequences remained the same. It stands to reason that
Congress did not intend to drop the materiality requirement. Public Law
94-550 simply supplemented the existing bankruptcy statute, which
criminalizes "knowingly and fraudulently mak[ing] a false oath or account"
in a bankruptcy case. See 18 U.S.C. section 152(2); see also United States v.
Cutter, 313 F.3d 1, 4 n.4 (1st Cir. 2002) (concluding 18 U.S.C. section 152(2)
requires materiality); United States v. Lindholm, 24 F.3d 1078, 1082-83 (9th
Cir. 1994) (same); Meer v. United States, 235 F.2d 65, 67 (10th Cir. 1956)
(interpreting identical predecessor to 18 U.S.C. section 152(2) to require
materiality and stating that "Congress did not intend to make it an offense
to make a false statement in a bankruptcy proceeding, where such statement
involved matters extraneous to such proceeding and not material to the
inquiry or the issue presented"); see also:United States v. Wells, 519 U.S. 482 (1997)United States v. Yagow, 953 F.2d 427,United States v. O'Donnell, 539 F.2d 1233, 1237
(9th Cir. 1976))Kungys v. United States, 485 U.S. 759, 770 (1988) (defining materiality).

People v.
Hyung Joon Kim (CA 6th Cir 12-19-2012; H03720) Penal Code section 1385
(DISMISSAL) is not applicable as to an individual who has been convicted and
has served his sentence. (Defendant/Movant was attempting to mitigate
criminal conviction to assist in fighting deportation)

Sekhar v. United States
(2013) Is the effort to try and get your employer to recommend an investment the
initiation of 'obtaining of property from another' under 18 U.S.C. s
1951(b)(2) -- the Hobbs Act? No.

United
States v. Reed, 80 F.3d 1419, 1423 (9th
Cir. 1996). Intended Loss, Bankruptcy Fraud. For one thing, because
this case involved con­spiracy, the district court was not limited under the
VWPA to considering only the value of the two concealed bank accounts, as
discussed above.

Kansas v. Cheever , USSup , 12-609,
12/11/2013. Defendant's expert testifies that the defendant lacked the
requisite mental state for a crime, 5th prohibition against
self-incrimination is not violated where prosecution introduces rebuttal
evidence from a court-ordered mental evaluation of the defendant.
Held: reaffirmed the rule of Buchanan v. Kentucky (1987) 483 U.S. 402 that
where a defense expert testifies to lack of the requisite mental state to
commit an offense, the 5th allows the prosecution to present psychiatric
evidence in rebuttal, that includes a defendant's statements made during a
court-ordered psychiatric evaluation! Otherwise the adversarial
process would be undermined.

U.S. v. Victor Hugo Sivilla (CA 9th Cir. 2013)Preservation of seized
evidence. Jeep lent to another person was found crossing the
border with over $160,000 in cocaine in the manifold. Where the
government destroys evidence (sold jeep) bad faith is required to
trigger dismissal but is not required for a remedial adverse-inference
jury instruction.

Nardell U. CARTER v. Daniel McCARTHY (CA9th 1986) No. 85-6299.
If the condition of parole is not made part of the plea bargain, the
term agreed upon is the outer limit of the sentence. Held:
court's failure to inform him of the mandatory parole term at the
time of his plea violated his due process rights.

The FTB may enforce a delinquent restitution obligation as if it were a
delinquent general tax obligation if requested by a state or county agency.
Rev & Tax Code sec. 19280. Similar to federal treatment of federal
restitution, but only where requested by the some arm of the state.
Restitution becomes a tax liability.

Ashwander v. Tennessee Valley Authority 297 U.S. 288 (1936) Affirmed 78
F.2d 578. Ashwander: The principle that one who accepts the benefit of a
statute may not question its constitutionality is held inapplicable.

ASSET FORFEITURE

Kaley v. United States
(12-464, decided February 25, 2014) (Kaley
Scotus Link) Case unsuccessfully fought
prong 1 of a two prong attack required for forfeiture, namely the probable
cause element which is a prerequisite to taking assets before conviction.
In this case the property supposedly sold in interstate commerce was either
abandoned or given to the defense.
21 U. S. C. §853(e)(1) restraining order against assets & Criminal forfeitures
are imposed upon conviction 21 U. S. C. §853(a).

US v. GEARY WAYNE WATERS, JR.,
(9th Cir 2014) No. 13-50332 Geary W. Waters appeals the district court’s
order dismissing his motion for reduction of sentence under 18 U.S.C. §
3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review
de novo whether a district court has jurisdiction to modify an otherwise final
sentence. United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009). We
affirm. Section 3582(c)(2) allows modification of a term of imprisonment when:
(1) the sentence is based on a sentencing range that has subsequently been
lowered by the Sentencing Commission; and (2) such reduction is consistent
with applicable policy statements issued by the Sentencing Commission. Id.
Neither of Waters’s two arguments supports jurisdiction for the district court
to reduce his sentence. As a career offender, the crack cocaine
amendments had no change on the Defendant's guideline range.

U.S. v. Ressam
(CA 9th 2012). Algerian would-be bomber of LAX sentence
seems as if it will not be settled as the 9th circuit sends it again back to
the district court. A 27 year floor for agreed cooperation may or may
not substantially survive a precotious period of non-cooperation followed by
a recantation of all testimony used to put others away.

U.S.
v. Castillo-Marin (9th Cir No.10-10549) district court committed plain
error in relying on Presentence Investigation Report's factual description
of prior for Taylor analysis) (circuit would not take judicial notice of New
York indictment and disposition documents, which on their own are per se
insufficient to
establish predicate offense under modified approach).

Ford v. Gonzalez (9th Cir No. 11-15430 July 2, 2012) The Defendant
is not entitled to a delayed commencement of the one year statute of
limitations of the Antiterrorism and Death Penalty Act (AEDPA) 28
U.S.C. section 2241 because the predicate of his claims could have, with due
diligence and the help of his wife been earlier discovered.

Miller v.
Alabama (No. 10–9646. June 25, 2012): No more mandatory life for
youthful murder convicts.

People v. Brown
(June 18, 2012, S181963) __ Cal.4th __.) Former Penal Code section 4019
applies prospectively only. Qualified prisoners in local custody first
became eligible to earn credit for good behavior at the increased rate
beginning on the statute's January 25, 2010 operative date.

U.S. v. Dorsey
(CA 9 2012) section 924(c)(1)(A)(iii) refers to "the minimum or the floor,
not the floor and ceiling as the prior version of the statute provided," and
that it "left open the ceiling

U.S. v. Tara Mazzeo (9th Cir 2015) This Unpublished 9th Cir. Case shows
(1) that KNOWLEDGE instruction for 18 USC §1001 can be waived; & (2) even
ambiguous agent notes & no recording can get a conviction - Use Right To
Silence!! Lying to Gov. Unpub. No KNOWLEDGE instruction (no trial objection)

U.S. v. Matthew Mowery
(10th Cir March 7, 2013) 288 month sentence results from failure (1) to take
a 15 year plea deal, (2) failure to recognize that allowing the judge to set
sentence outside of a plea deal would have a grave possibility of a
consecutive sentence, & (3) waiver of appeal makes the result un-changeable.
Ineffective Assistance of Counsel denied. Certificate of Appealability
denied.

U.S. v. Craig
703 F.3d 1001(7th Cir.) (Posner, J., concurring) 50-year sentence for child
pornography production was justified in case involving murder threats. De
facto life sentences should be considered with respect to net costs of
imprisonment). Consecutive terms are encouraged under the Guidelines when
the statutory maximum on any one count is below the guideline range.

Missouri v. Frye,
––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (1) Defense counsel
has a duty to communicate formal offers from the prosecutor that may be
favorable to the accused; and (2) defense counsel acted deficiently when he
allowed a formal plea offer to "expire" without advising the defendant of
the offer or allowing him to consider it. Prejudice inquiry required it to
look NOT at whether the petitioner would have proceeded to trial absent the
ineffective assistance, but whether he would have accepted a more favorable plea offer. Id. at 1410. (citing
Perez-Ortiz v. Sec'y, Dept. of Corr., 6:11-CV-188-ORL-31, 2012 WL 2285058
(M.D. Fla. 2012))

U.S. v. GUSTAVO REYES -CEJA
- Affirming a sentence, the panel joined the Fifth, Tenth, and Eleventh
Circuits and held that the Sentenc ing Guidelines enhancement for being
under a criminal justice sentence, U.S.S.G. § 4A1.1(d), may be applied to a
deportee “ found in” the United States in violation of 8 U.S.C. § 1326
while he was imprisoned.

Alleyne v. US
June 17, 2013. Petitioner Alleyne was charged, as relevant here, with using or
carrying a firearm in relation to a crime of violence, 18 U. S. C.
§924(c)(1)(A), which carries a 5-year mandatory minimum sentence,
§924(c)(1)(A)(i), that increases to a 7-year minimum “if the firearm is
brandished,” §924(c)(1)(A)(ii), and to a 10-year minimum “if the fire - arm
is discharged,” §924(c)(1)(A)(iii). In convicting Alleyne, the jury form
indicated that he had “[u]sed or carried a firearm during and in relation to
a crime of violence ,” but not that the firearm was “[b]randished.” When the
presentence report recommended a 7-year sentence on the §924(c) count,
Alleyne objected, arguing that the ver - dict form clearly indicated that th
e jury did not find brandishing be - yond a reasonable doubt and that
raising his mandatory minimum sentence based on a sentencing ju dge’s
finding of brandishing would violate his Sixth Amendment right to a jury
trial. The District Court overruled his objection, relyin g on this Court’s
holding in Harris v. United States , 536 U. S. 545, that judicial
factfinding that increases the mandatory minimum sentence for a crime is
permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing
that Alleyne’s objection was foreclosed by Harris . Held : The judgment is
vacated, and the case is remanded.

Taylor v. United States,
495 US 575 (1990) "Burglary" as defined in § 924(e) has no "single accepted
meaning" in federal law and this lack of uniformity disrupts the relevance
of defendant's prior conviction. Held, this determination of whether a
prior burglary conviction counts under the Aremed Career Criminal Act must
be analyzed by each state's definition, and rules and must employ a
formal categorical approach, looking only to the fact of the prior
conviction and the statutory definition of the predicate offense and also,
in a narrow class of cases, the charging documents and jury instructions, to
insure that any sentencing enhancement based upon a prior conviction
squarely fits the parameters under which the enhancement may be found.

US v. ROBERT CEPHAS BROWN, JR., (9th Cir 2014) No. 12-10227 (US v. DUANE
ALLEN EDDINGS), Beware of ancillary charges, where no damages charged
(sentencing --- but does it also go to dropping or negating the charge?)
Here the remand was to "find out how much?"

SHEPARD V. UNITED STATES
(03-9168) 544 U.S. 13 (2005) 348 F.3d 308. Government sought to increase
his sentence from a 37-month maximum to the 15-year minimum that §924(e),
popularly known as the Armed Career Criminal Act (ACCA), mandates for such
felons who have three prior convictions for violent felonies or drug
offenses. Shepard’s predicate felonies were Massachusetts burglary
convictions entered upon GUILTY PLEAS. Reference was made to
Taylor v. United States,
495 U.S.
575, Refusing to consider the 15-year minimum, the District Court found
that a Taylor investigation did not show that Shepard had three generic
burglary convictions and rejected the Government’s argument that the court
should examine "police reports" and "complaint applications" in determining
whether Shepard’s guilty pleas admitted and supported generic burglary
convictions. The First Circuit vacated, ruling that such reports and
applications should be considered. On remand, the District Court again
declined to impose the enhanced sentence. The U.S. Supreme Court Held: The
First Circuit is vacated, reversed and remanded.

Descamps v. U.S. No. 11–9540. Argued January 7, 2013—Decided June
20, 2013 Armed Career Criminal Act prior burglary conviction
inapplicable where state statute covered a broader range of conduct than
"common law"/"generic" burglary which takes it out of the ability for
use under ACCA.

U.S. v. Briant LAURIENTI (9th Cir. 2013) We have consistently held that
“[ t] here is no general right to an evidentiary hearing at sentencing .”
United States v . Real-Hernandez , 90 F .3d 3 56, 362 (9th Cir. 1996). When
a defendant disputes a fact relevant to sentencing , the district court need
only provide the parties a “‘reasonable opportunity ’ to present information
to the court.” Id . (quoting F ed. R. Crim. P. 32(c)(3)(A)).

U.S. v. Edgar J. Steele (CA 9th Cir 2013) Handyman-Pipe-Bomb
maker hired for attempts on employer's wife and mother in law.
After first failed attempt, the bomber cooperates with the FBI.
Hearing can be denied where the motion is un-developed.

U.S. v. Cameron Reed (CA 9th. Cir 2013) No. 12-10420 .The panel
affirmed a conviction by conditional guilty plea to violating Nev.
Rev. Stat. § 484C.110(3) ( g ), which prohibits driving with over 2
ng /ml of marijuana in the blood, assimilated into federal law under
the Assimilative Crimes Act, 18 U.S.C. § 13, in a case in which the
defendant was arrested after driving erratically on a federal road
in the Lake Mead National Recreation Area. Complete discussion
of the act.

U.S. v. Valenzuela-Arisqueda (CA 9th Cir. 2013) 11-10596 : Plea
Jeopardy: Ok to reject the plea, but must not vacate the plea, after
acceptance. Defendant had options of Trial, plead, or new agreement.

U.S. v. Christopher LENIEAR (CA 9th Cir. 2009) No. 08-30199.
Appeal waiver under 18 U.S.C. § 3742; but does Amendment 706 lower
the applicable guideline range. The waiver signed by Leniear bars
only his right under 18 U.S.C. § 3742 "to appeal the sentence ...
imposed." Yet here, Leniear is appealing not his sentence, but
rather the district court's conclusion that it lacked jurisdiction
to modify his sentence.

USA V. ELIZABETH RODRIGUEZ-VEGA (9th Cir 2015) 13-56415 San Diego
District Court REINHARDT, StephenVirtually Certain > "probably" Defacto
rule that every criminal non-citizen defendant be given a virtually certain
warning that they will be deported. Completely chills any speculation and/or
requires an opinion from a certified immigration specialist.

PAROLE & PROBATION

U.S. v. King
(11-10182 June 20, 2012 CA 9th 2012) Probationers have a greater expectation
of privacy than parolees, an angstromic departure from prior case law
holding equivalency.

CONFRONTATION -
AEDPA

Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527

Bullcoming v. New Mexico (2011) 131 S.Ct. 2705

Doody v. Ryan (9th Cir.) (May 4, 2011)

Gilbert v. United States (11th Cir.) (May 19, 2011)

Gonzalez v. Thaler No. 10-895 AEDPA's limitation period begins
to run "when the time for pursuing direct review in Federal Court, or in the
state court, expires.

HABEAS

Crosby v. Schwartz Habeas relief for a 290 registrant who waived jury
trial and then ask that the waiver be withdrawn. The 9th Circuit rule of
United States v. Mortensen, 860 F.2d 948, 950-51 (9th Cir. 1988), that: "A
request is timely if "granting the motion would not unduly interfere with or
delay the proceedings" is upheld. State court's conclusion that the
trial court did not abuse its discretion when it denied Crosby's request for
withdrawal the day trial was set to begin as untimely because granting it
would have interfered with and delayed his trial, is an acceptable conclusion.

Vincent
CULLEN, Acting Warden, Petitioner, v. Scott Lynn PINHOLSTER. No.
09-1088.131 S.Ct. 1388 (2011) Scope of the record for a section2254(d)(1)
inquiry is limited to the record that was before the state court that
adjudicated the claim on the merits. Also, failure to demonstrate that the
California Supreme Court unreasonably applied clearly established federal
law to penalty-phase ineffective assistance claim on the state-court record.

In re RENO
on Habeas Corpus. (Original Proceeding Opinion No. S124660, Filed: August
30, 2012) Exposition of announcement of new rules for the prerequisites to
seeking federal habeas corpus relief. 1. Death sentenced defendant can still
be able to file initial habeas corpus petition with no limit as to length;
later petitions are limited to 50 pages (or 14,000 words on a computer or
good cause exception).2. Petitions clearly and frankly disclose all of
the following information in a table or chart of not more than 10 page
attachment (which won't count against the 50-page limit) including:What
claims have been raised and rejected before, and where (either on appeal or
on habeas corpus, with citations);What claims could have been raised
before, and why they weren't raised earlier;What claims have not already
been presented to the supreme court; andWhich claims were deemed
unexhausted by the federal court and are raised for exhaustion purposes,
as supported by copy of the federal court‘s order.3. A petitioner may
elect to submit for the supreme court's consideration, in a short table or
chart, some or all of the claims deemed unexhausted by the federal
court. This summary presentation may be a brief statement of the issue
and reasons why procedural bars may not apply.

ASHLEY JOURDAN COFFEY v. JEAN SHIOMOTO,
as Director, etc., Orange County; Super. Ct. No. 30-2012-00549559.
Rising BAC, .8 - .96 with inference of below .8 at time of traffic stop.
license would be suspended pursuant to Vehicle Code section 13382.1.
Jay Williams, a forensic toxicologist with extensive experience testified to
rising BAC. Crazily, the toxicologists testimony was discounted because he
was not an expert on the measurement devices??? wow. What is the
implication? Does this mean that physiological experts need to be
electronics experts? Does it mean that defense cannot take
prosecutor's alcohol level (ethaldehyde) levels once offered into evidence?
Defense has to attack and re-establish its own levels? Did the expert
simply fail in not illustrating the computational approach?

McMonagle v. Meyer, (9th Cir 2014), Case #: 12-15360 Opinion Date:
9/10/2014 , DAR #: 12546. This very important case sets the rule in
California for the convergence of exhaustion and finality for purposes of
seeking federal habeas for California misdemeanors. McMonagle's
Confrontation Clause rights were violated when the state DUI trial court
admitted McMonagle's blood alcohol lab report without the sponsoring
testimony of the analyst who prepared the report, in violation of Crawford
v. Washington, 541 U.S. 34 (2004). Below, a judge of the appellate division
only reversed that portion of the conviction that related to conviction as
to the scalar magnitude of the test result, but upheld the conviction as to
the general "impaired" part of the statute. In the 9th circuit
reversal, the words: "Ultimately, this may be a hollow victory for Mr. McMonagle. If on remand the
district court finds that the California Appellate Division correctly
determined that the admission o f the blood test results was harmless beyond
a reasonable doubt, Mr. McMonagle’s petition will b e denied on the merits."
Chilling. The rule to wach for with respect to misdemeanor habeas is:
. AEDPA's one-year statute of limitations begins to run from "the date on
which the judgment became final by the conclusion of direct review or the
expiration of time for seeking such review." (28 U.S.C. §
2244(d)(1)(A).) For purposes of federal law, seeking state habeas
review of a misdemeanor in the California Supreme Court is part of the
direct review process because it is the sole mechanism by which the
California Supreme Court reviews legal issues in such cases and is
required before a petitioner may seek federal review in order to exhaust
state remedies. Thus, state habeas is not truly a "collateral" proceeding.
California misdemeanants who are required to file a state habeas petition in
order to both reach the state court of last resort and fully exhaust their
claim before seeking relief in federal court, finality for the purposes of
AEDPA occurs once the California Supreme Court denies their state habeas
petition and the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires.

Larche v. Simons , 53 F .3d 1068, 1071 (9th Cir.
1995); 28 U.S.C. § 2254. Almost two decades ago, this court held that
“before turning to the federal courts for habeas review, misdemeanants must
present their constitutional claims to the California Supreme Court by means
of state habeas petitions” in order to fully exhaust their claim s in
compliance with § 2254. Id. at 1072. The Supreme Court, moreover, has
repeatedly emphasized the importance of full exhaustion in habeas petitions.

CRIMINAL
PROCEDURE

Crittenden v. Chappell,
(9th Cir. October 26, 2015) No. 13-17327 - Another Dimension and the use of
Statistics to defend playing to win. Last peremptory struck the last race
demographic category juror.

In re D.L. C067525 Suitability for Deferred Entry of Judgement (DEJ)
requires a hearing under the rules if the DEJ status is not granted. It
was not done in this case. Trial court failed to conduct a hearing and to
hear any last minute reasons why it was improper to
grant the status.

U.S. v. Yepiz (imposing on defense "use it or lose it" rule for
peremptory challenges was clear violation of Fed. R. Crim. P. 24(b), but did
not amount to plain error).

Ordonez v. U.S.
(CA 9th 2012) Defendant was not entitled under Fed. R. Crim. P. 41(g) to
return of property seized during his arrest) (claim for money damages
under Rule 41(g) was barred by sovereign immunity).

U.S. v.
Richard L. GILBERT, (11th Cir. No. 97-2208, March 18, 1998.) Appeal from
the United States District Court for the Northern District of Florida. (No.
3:96-CR-47-LAC), The general statute of limitations for noncapital offenses
is five years. See 18 U.S.C. section 3282 ("Except as otherwise expressly provided
by law, no person shall be prosecuted, tried, or punished for any offense,
not capital, unless the indictment is found or the information is instituted
within five years next after such offense shall have been committed."). The
parties do not dispute that this five-year limitations period applies to the
offense of concealment of assets. Instead,
the dispute is about when the time began to run.
"While there is little recent case law on this issue, several courts have
extended the statute of limitations under section 3284 to events that have
the same effect as denying a discharge of the bankrupt." United States v.
Dolan, 120 F.3d 856, 867 (8th Cir.1997) (citing Guglielmini, 425 F.2d at
443; Rudin v. United States, 254 F.2d 45, 47 (6th Cir.1958); United States
v. Zisblatt Furniture Co., 78 F.Supp. 9, 12-13 (S.D.N.Y.1948)).
Courts addressing this issue have determined that, where discharge is no
longer possible, the date upon which the discharge became impossible is the
date upon which the statute of limitations begins to run. In other words,
the limitations period should begin when an event occurs that has the same
effect as the denial of discharge. Events which have been held to have the
same effect as denial of discharge include the voluntary dismissal of
bankruptcy proceedings, the waiver of discharge, and the failure to file
timely for discharge. See Guglielmini, 425 F.2d at 443; Rudin, 254 F.2d at
47; Zisblatt Furniture Co., 78 F.Supp. at 12-13; cf. Winslow v. United
States, 216 F.2d 912, 915 (9th Cir.1954) (because power to apply for
discharge remained with defendant, statute of limitations did not begin to
run until application for discharge or denial of discharge). Considering the
alternative interpretation offered by the government, that no statute of
limitations applies to situations like this one, we decide that Defendant's
view of the law is correct:"[T]he period of limitation runs from the
date of the event when discharge becomes impossible...."Guglielmini, 425
F.2d at 443. In our view, CAL's choice to convert from Chapter 11 to Chapter
7 operated like a waiver of discharge, making discharge impossible.
When CAL's bankruptcy was converted to Chapter 7, on 1 December 1987,
discharge was no longer possible; and the statute of limitations began to
run. Thus, the government had until December 1992 to file an indictment
for the concealment of CAL's assets. The indictment in this case was not
filed until July 1996. Therefore, the charges against Defendant were brought
after the expiration of the period of limitations; and the motion to
dismiss the indictment should have been granted.

Giglio v. United States,
405 U.S. 150 (1972), in the Brady line of cases, Giglio requires that
the prosecution's failure to inform of a nonprosecution deal in exchange for
his testimony was a failure to fulfill Brady, violates due process &
mandates a new trial.

NEW YORK v.
Benjamin QUARLES. 467 U.S. 649 (104 S.Ct. 2626, 81 L.Ed.2d 550) - Public
Safety Exception to Mirandah, in this case location of missing gun - public
safety.

TURNING STATES EVIDENCE

U.S. v Johnson
375 F.3d 1300 (11th 2004). No safety valve is available to enable
marijuana grower defendant who makes plea deal in exchange for testifying
about his crime, to avoid testifying about and implicating others who
performed distribution. Held: Reduced sentence was properly withdrawn
and full sentence was properly applied.

Kastigar v. United States, 406 U.S. 441 (1972) Once a defendant has been
compelled to testify pursuant to a grant of immunity, the government has the
burden of establishing that the evidence was derived from independent
sources.

SALES TAX

People v. Chaghouri, 103 Cal. App. 4th 464 - BOE is not a victim
entitled to restitution under Penal Code section 1203.1 the predecessor to
Penal Code sections 1203.4 and 1202.4 which are applicable here.

People v. Ozkan, 124 Cal. App. 4th 1072 : grand theft by fraud (Pen.
Code, § 484, subd. (a)) and filing false and fraudulent sales and use tax
returns (Rev. & Tax. Code, § 7153.5). Question involves restitution.
Pursuant to Business and Professions Code section 12015.5, the court also
ordered restitution for investigative costs, based on the public agencies'
investigation of the nature and extent of Ozkan's criminal conduct. Q:error
to deny restitution to the public agencies for their investigative costs?1.recoverable under the general restitution
statute, Penal Code section 1202.4?The general restitution statute, Penal Code
section 1202.4, subdivision (a)(1), provides that “a victim of crime who
incurs any economic loss as a result of the commission of a crime shall
receive restitution directly from any defendant convicted of that crime.”
The definition of a “victim” in Penal Code Section 1202.4, subdivision
(k)(2), includes a governmental agency “when that entity is a direct victim
of a crime.” (Italics added.)

Citing Penal Code
section 1202.4, the People argue that where a public agency acts in a public
safety capacity in its investigative role, the costs it incurs may be direct
economic losses resulting from defendant's criminal conduct, and thereby
subject to restitution. They rely on People v. Narron (1987) 192 Cal. App.
3d 724, 729, 735–737 [237 Cal. Rptr. 693], which permitted an award of
restitution for county cleanup costs related to the defendant's illegal drug
lab, where such a cleanup was necessary to secure public safety. However, in
the present case, this public safety argument was not properly raised by the
prosecution in the trial court, and thus it has been waived for purposes of
appeal. (See People v. Tillman (2000) 22 Cal.4th 300, 303 [92 Cal. Rptr. 2d
741, 992 P.2d 1109].) In any event, the record shows the public agencies in
question were impelled by a desire to collect taxes and prevent cheating,
not a desire to secure public safety.

Under the relevant case
law and the statutory scheme, public agencies are not directly “victimized”
for purposes of restitution under Penal Code section 1202.4 merely because
they spend money to investigate crimes or apprehend criminals. The
Legislature is of course free to expand the statutory scheme, or create
exceptions for particular crimes, and in the next section of this opinion we
examine one such exception.

Regarding B&PC 12015.5
But, as the People point out, appellant's plea agreement included a Harvey
waiver, which would allow the sentencing court to consider the facts of the
dismissed counts in ordering restitution. Okazan: Rule 22 motion is needed to ask for
review of legislative history. (old rule 8.252)

Texas Sales Tax:
Investigations -
Statutes statutory basis for the state’s power to hold corporate
officers and similarly-situated individuals liable for their entities’
collected but unremitted taxes is found in Texas Tax Code Section 111.016
(Payment to the State of Tax Collections): Subsection (a) of that code
section provides that “… (a) Any person who receives or collects a tax or
any money represented to be a tax from another person holds the amount
so collected in trust for the benefit of the state and is liable to the
state for the full amount collected plus any accrued penalties and interest
on the amount collected.”Subsection (b) then states, in pertinent part,
that “(b) With respect to tax or other money subject to the provisions of
Subsection (a), an individual who controls or supervises the collection of
tax or money from another person, or an individual who controls or
supervises the accounting for and paying over of the tax or money, and who
wilfully [sic] fails to pay or cause to be paid the tax or money is liable
as a responsible individual for an amount equal to the tax or money not paid
or caused to be paid.”Finally, Subsection (d)(1) defines a “responsible
individual” for this purpose to include “an officer, manager, director, or
employee of a corporation, association, or limited liability company or a
member of a partnership who, as an officer, manager, director, employee, or
member, is under a duty to perform an act with respect to the collection,
accounting, or payment of a tax or money subject to the provisions of
Subsection (a).”

BANKRUPTCY

In
Re Maya, 374 B.R. 750 (Bankr. S.D.
Cal. 2007) For purposes of the "means test" analysis of § 707(b)(2) the
appropriate measuring point in time is the petition date. See
In re Walker,2006WL1314125
(Bankr.N.D.Ga.2006); In re Littman,370B.R.820
(Bankr.D.Idaho 2007); In re Wilkins,370B.R.815
(Bankr. C.D.Cal.2007); In re Haar,360 B.R.759
(Bankr.N.D.Ohio 2007); In re Kelvie,372B.R.56
(Bankr.D.Idaho 2007); In re Benedetti,372B.R.90
(Bankr.S.D.Fla.2007). However, abuse pre BAPCPA, based upon a debtor's
ability to pay still holdes under. In the pre-BAPCPA days in the
jurisdiction of the Ninth Circuit ability to pay was a ground sufficient
unto itself to support dismissal for "substantial abuse" (§ 707(b)(3)(B)).
In re Kelly,841F.2d908 (9th Cir.1988). BAPCPA lowers the
statutory standard to "abuse", and a number of courts that have considered
the role of ability to pay since BAPCPA became effective agree it may
support dismissal. In re Pak,343B.R.239 (Bankr.N.D.Ca.2006); In re
Henebury,361B.R.595 (Bankr. S.D.Fla.2007); In re
Pennington,348B.R.647 (Bankr.D.Del.2006); In re Mundy,363B.R.407 (Bankr.M.D.Pa.2007). But see In
re Nockerts,357B.R.497 (Bankr.E.D.Wis. 2006) where that
Circuit's law pre-BAPCPA was different from Kelly. This Court agrees
with the reasoning in Pak, and Henebury, and concludes that
ability to pay may support dismissal under § 707(b)(3)(B) after reviewing
the totality of a debtor's financial
circumstances.

In Re Wilkins,
370 B.R. 815 (Bankr. C.D. Cal. 2007) "means test" calculation payments due
on her secured property obligations, notwithstanding the fact that she
intends to surrender the property is proper. Debtor is entitled to deduct
the monthly payment on secured debt for property she intends to surrender.

In re Gallagher,Gallagher v. Dockery, Borrowitz &
Clark 13-->7-->13 conversion
bounce included the trustee asking for return of released funds due to the first conversion.
105(a) & 542 basis, held REVERSED. Illustrates a number of mechanisms: (1)
upon conversion from 13-->7, the chapter 13 trustee holds post petition earning and must refund it, (2) where
the debtor receives the refund while debtor is in a chapter 7, the debtor
may freely spend it, (3) upon reconversion 7-->13, if the debtor doesn't
havethe money, it
is not rightfully owed to the chapter 13 trustee. Also (4)" bankruptcy court
entered the Fee Order after entry of the Conversion Order albeit prior to
return of the Refund to the Debtors. Under these facts, the Chapter 13
Trustee was required to return the Refund to the Debtors. See In re Clements
, 495 B.R. 74, 76 (Bankr. E.D. Pa 2013) (where no order had been entered
denying plan confirmation, and º 503(b) attorneyÆs fees were not allowed
until postconversion, all postpetition assets had to be returned to the
debtors on conversion to chapter 7)"

Bank of China v. Huang (In re Huang)
275 F.3d 1171 (9th Cir 2002) : You need admitted "fraud facts" boiler plate
conclusions are insufficient. Archer: beware of novation of the fraud claim
into a contract claim -- that settles a fraud claim and folds it into the
settlement agreement (what about criminal language?) Settlement&Note v.
Consent Decree & Stipulation. (also CONSENT DECREE + facts admitting to
fraud + stipulation for entry of the decree upon default+ admisson of
realization that they are precluded from disputing the facts in any
subsequent legal proceedings.) & (if prior fraud judgement, attach it to the
settlement & Debtor admits that there was a full and fair adjudication & itrepresents the final judgement. A settlement of
an obtained nondischargeability judgement should include a forebearance
agreement so that it will be honored by the creditor only so longas debtor makes required installment agreements.
(prove-up hearing following a default judgement)

BAKER
BOTTS L.L.P. ET AL v ASARCO LLC U.S. Supreme Court (decided June 15,
2015) §330(a)(1) permits a bankruptcy court to award attorney’s fees for
work performed, BUT NOT for defending a fee application in court. 5th
Circuit case from which appeal was launched
http://www.ca5.uscourts.gov/opinions/pub/12/12-40998-CV0.pdf

IN RE TRISTAR ESPERANZA PROPERTIES, LLC,
(PENSCO TRUST COMPANY; JANE O’DONNELL v. TRISTAR ESPERANZA PROPERTIES, LLC,
a California Limited Liability Company, Appellee. (9th Cir. 2015) No.
13-60023 BAP No. 12-1340 summary judgment in an adversary proceeding to
subordinate a creditor’s claim based on a minority interest in a chapter 11
debtor is affirmed. The panel held that the claim was subject to mandatory
subordination under 11 U.S.C. § 510(b) because it was a claim for damages
arising from the purchase or sale of a security of the debtor.

In re BOAZ SHAMAM,
(BOAZ SHAMAM v. DONALD MOTZKIN, ERIT SHAMAM; DAVID KEITH )GOTTLIEB, Chapter 7 Trustee, ) (9th Cir BAP 2015)
BAP No. CC-14-1274-TaPaKi, BAP No. CC-14-1300-TaPaKiDebtor., Bk. No. 11-19995-VK(1) Short step court payment as a condition to
avoid dismissal of a case may not be a satisfying state of affairs. Default,
followed by obligation to pay $2,930.16 compensatory for the default,(2) Partner Credit Cards, actual fraud. $34k, $3k(3) Lawsuit for fraud, breach of fiduciary duty,
and breach of contract & for judgment removing the Debtor as an officer and
director of the Corporation(4) A further state court default for $120,410.10(5) After further inaction, the default is
reinstated and plaintiff asked for money based on state court judgement.(6) it also indicated its intent to discharge the
Corporate Card debt under § 523(a)(4); as the Corporation was the holder of
that account, the requisite fiduciary relationship did not exist under
California law.
(7) default judgment against the Debtor, which provided that only $77,948.06
of the state court judgment was nondischargeable under § 523(a)(4). The
default judgment also awarded attorneys fees in the amount of $124,812.50,
plus post-judgment interest.(8)To obtain a default judgment of
nondischargeability of a debt, a two-step process is required: (1) an entry
of default (typically by the clerk of court); and (2) a judgment by default.
Cashco Fin. Serv., Inc. v. McGee (In re McGee), 359 B.R. 764, 770 (9th Cir.
BAP 2006).(9)
Failure to oppose motion to reinstate default is fatal.

In re TONYA CAROL HEERS, BAP Nos. NV-14-1468-DJuKu & NV-14-1469-DJuKu;
Bk. No. 2:13-bk-19887-LED ADV: 2:14-ap-01030-LED (TONYA CAROL HEERS v.
DARRELL PARSONS, JR.; AMERICAN CONTRACTORS INDEMNITY COMPANY)Son of decedent, not happy that he was notified
timely of his father's death chooses another attorney to take over the
probate. Tax returns (both final and estate) would be necessary and
attorney debtor hires cpa firm. $439,621.61 of interest and penalties
became due, in addition to normal tax, for late filing.
Bullock v. BankChampaign, N.A., was cited for the
impact of defalcation. Bankruptcy court held that there was reckless
conduct. BAP affirmed.

Wellness Int’l Network, Ltd. v. Sharif,
___ U.S. ___, 2015 WL 2456619 (No. 13-935) (May 26, 2015) consent can be
implied as well as express & recommended that courts require parties to
indicate at the outset of a proceeding whether they so consent, either by
district-wide rule or some other mechanism, and by the same token that
in any event parties on their own so indicate to avoid confusion.)

(In
re Gallagher) MATTHEW F. GALLAGHER;
MELISSA A. GALLAGHER, v. KATHY A. DOCKERY, Chapter 13 Trustee; BOROWITZ &
CLARK LLP 13-->7-->13 conversion bounce included the trustee asking for
return of released funds due to the first conversion. 105(a) & 542 basis,
held REVERSED. Illustrates a number of mechanisms: (1) upon conversion
from 13-->7, the chapter 13 trustee holds post petition earning and must
refund it, (2) where the debtor receives the refund while debtor is in a
chapter 7, the debtor may freely spend it, (3) upon reconversion 7-->13, if
the debtor doesn't have the money, it is not rightfully owed to the chapter
13 trustee. Also (4)" bankruptcy court entered the Fee Order after entry of
the Conversion Order albeit prior to return of the Refund to the Debtors.
Under these facts, the Chapter 13 Trustee was required to return the Refund
to the Debtors. See In re Clements , 495 B.R. 74, 76 (Bankr. E.D. Pa 2013)
(where no order had been entered denying plan confirmation, and § 503(b)
attorney’s fees were not allowed until postconversion, all postpetition
assets had to be returned to the debtors on conversion to chapter 7)"

In re: EARL JACKSON, JR. and CHERYL HODGES
JACKSON ; MOSES F. ABONAL; (ABONALPARALEGAL SERVICES, v. UNITED STATES TRUSTEE),
(9th Cir. BAP 2014) Bk. No. 13-29626 -WB; BAP No. CC-14-1091-DKiTa Judge Brand autopsy
on one of the most egregious petition preparer actions perpetrated. An
excellent example of the "attorney satellite theory" where the petition
preparer represents that they work for an attorney, but where the attorney
has never met the bankruptcy debtors, but had some distant past relationship
with the preparer.

Todd A Frealy v. Rick H Reynolds
(9th Cir. 2015) "Order certifying a question to the california Supreme
Court) Does § 15306.5 of the CA Probate Code impose an absolute cap of 25%
on a bankruptcy estate's access to a beneficiary's interest in a spendthrift
trust that consists entirely of payments from a principal, or may the bankruptcy
estate reach more than 25% under OTHER sections of the probate code
(example: CA Probate code §15301(a) which grants access to principal "due
and payable") Bankrupt was, upon father's death, immediately entitled to
$250k and to $100k per year for ten years. Bankruptcy trustee urged that §
15306.5; §15301(b); and §15307 are independent routes and that a 25% blanket
limit would not apply to all routes. Bankruptcy Court ruled for Debtor, BAP
affirmed, and now the 9th wants to hear from CA Supreme Court.

In Sullivan v. Harnisch (In re Sullivan),
522 B.R. 604 (9th Cir. BAP 2014), 15 days after a chapter 11 bare bones
filing, a creditor moved to dismiss for "bad faith filing" and "single
creditor dispute". Former Employer filed motion to dismiss. Bankrutpcy court
would not grant stay on appeal, but BAP did. Held, failure to consider
benefit to all the creditors makes this a bad faith dismissal.

In re Carolyn L Davis
(Carolyn L. Davis v. US. Bank, N.A.; OneWestBank; and Elizabeth F. Rojas)
(9th Cir. 2015) No. 12-60069, Bap No 11-1692. Chapter 12 debt limits are set
at time of filing AND includes in rem debt for property for which personal
debt may have been extinguished in a prior chapter 7.

In re: Yan Sui
(Yan Sui; Pei-YU Yang v. Richard A. Marshack Chapter 7 Trustee. (9th Cir BAP
2014) appeal challenging a bankruptcy court order barring filing petitions
without prior review. 13 pre-petition cases & 6 post- petition cases, were
alleged by the trustee to be for nothing more than harrassment. Held,
there are other resort that could be had without blocking access to the
courts.

In re Michael Lynn Richter
(Bankr C.D. C.A. Jan 20, 2015) See Judge YUN - Redemption rights. Right of
Redemption is separate and apart from a right to cure a default in a chapter
13 plan. §1322(b)(3) and (b)(5)

Neither definition under
§101(5) is broad enough to include this redemption relationship between a
new third - party purchaser and a prior owner as a “claim.” What the auction
winner has is not "a right to payment". Not a “claim” unless the underlying
breach can give rise to a monetary remedy.

Arguing that the
foreclosure buyer is an entity that has no claims ( IS DANGEROUS).
108(b) could be the 3rd option. Trustee must CURE or PERFORM before the
period or 60 days after the order for relief. You have to deposit the
redemption price.

Foreclosure buyer was never listed or noticed.
(another reason to serve the world and tell everyone when you file
bankruptcy). Made no effort to contact the foreclosure buyer. Further,
plan didn't state plainly what it was trying to accomplish. [A] plan should
clearly state its intended effect on a given issue. Where it fails to do so
it may have no res judicata effect for a variety of reasons: redemption involves the
plan inclusion of the foreclosure sale price and NOT the arrears.At a minimum, the Plan needed to provide(1) that the prepetition foreclosure sale be set
aside and Rustling Oaks’ Certificate of Foreclosure Sale rescinded (2) sale proceeds
(arrears portion)(3) HOA assessment lien be reinstated. received by all parties be refunded
back to Foreclosure buyerNo signal to un-do sale and take foreclosure sale
person's property.

In re: EDWARD E. ELLIOTT,
(EDWARD E. ELLIOTT v. DIANE C. WEIL) (9th Cir BAP 2014) BAP Nos.
CC-14-1050-KiTaD & CC-14-1059-KiTaDBk. No. SV 11-23855-VK;
Embellishes Law v. Siegel and holds that one who hides property cannot lose
exemption, however... (1) transfer of homestead abrogates declared
homestead. But loss of the declared homestead is not dispositive of his
right to a homestead exemption. Declared homestead exemption apply only in
the context of voluntary sales, whereas, declared homestead for purposes of
Article 5 was effectively abandoned or destroyed when he conveyed title to
the Buckingham Property to S. Central in 2006; it was not resurrected by his
reacquisition of title from LWI in 2012. The filing of a bankruptcy petition
constitutes such a “forced sale” to trigger the application of the automatic
homestead exemption. Conveyance of the Buckingham Property’s title to a
third party does not defeat his right to an automatic exemption, because continuous
residency, rather than continuous ownership, controls the Article 4
analysis. Accordingly, the automatic homestead exemption applies to
any interest in the property if the debtor
satisfies the continuous residency requirement set forth in CAL. CIV. PROC.
CODE § 704.710(c). HOWEVER, §522(g)(1) + recovery limits
homestead.

In Re Gigi Ellis
(9th Cir. BAP 2014) nO cn-14-1052-pAjUkU BK No. 13-33612. Court may
recognize intervening events after the case being appealed from, including
conversion, dismissal & discharge to enable a holding of mootness. Shortened
Notice conditioned with a time limited service requirement may be relaxed by
substantial compliance, including Fed Ex; and debtor who stated that she
would not attend is held to know of the hearing.

IN RE:
Daniel W. ALLEN, Sr., Debtor. Advanced Telecommunication Network, Inc.,
(3rd Cir. 2014) Appellant.No. 13–3543. Decided: September 26, 2014:(1) § 541 is internally consistent.
Subsection (a) provides that the estate includes property “wherever located
and by whomever held.” 11 U.S.C. § 541(a). If “recovers” is interpreted as
requiring actual possession, it would render the “wherever located and by
whomever held” language superfluous, since actual possession would mean that
no one but the trustee could ever possess estate property. Courts should
avoid interpretations of statutory language that render other portions of
the statute superfluous.(2) ATN obtained a § 550 recovery order, thus
bringing the funds within its estate in the Florida proceedings. none
of the decisions cited by the New Jersey Federal Courts required a debtor to
recover actual tangible possession of the funds at issue in order to make
those funds part of the debtor's estate under § 541(a)(3). We will not
impose such a high hurdle, particularly where doing so would allow Allen to
continue avoiding the judgment against him. (3) Section 727(e) provides in full:The trustee, a
creditor, or the United States trustee may request a revocation of a
discharge—(1) under subsection (d)(1) of this section within one year after
such discharge is granted; or(2) under subsection (d)(2) or (d)(3) of this
section before the later of—(A) one year after the granting of such
discharge; and(B) the date the case is closed. 11 U.S.C. § 727(e).

In re Solar Trust of America, LLC, (No. 12-11136, 2014 WL 4068635
(Bankr. D. Del. Aug. 18, 2014) the US Bankruptcy Court for the District of
Delaware held that a claimant submitting foreign materials with a proof of
claim must provide an English translation of those documents in their
entirety. Note ALWAYS provide TRANSLATIONS for any submitted foreign
documents for the court.

IN
RE: RUFENER CONSTRUCTION, INC., (9th Cir. 1995( Debtor. CARPENTERS
HEALTH AND WELFARE TRUST FUNDS FOR CALIFORNIA, et al., Creditors-Appellants,
v. Jerome ROBERTSON, Trustee-Appellee. No. 93-16098. Decided: May 8, 1995;
Section 1113(f) of the bankruptcy code limits the power of a bankrupt
company to unilaterally terminate or modify the terms of a collective
bargaining agreement. However, §1113(f) DOES NOT apply to bankruptcies filed
under Chapter 7 of the Code. Operating Engineers Trust Funds and the
Carpenters Trust Funds (hereinafter “Trust Funds”) filed separate claims
against the estate totaling almost $75,000 for employee benefit
contributions payable under collective bargaining agreements.
Liquidation uses §507, the provision that usually governs claims for wages
and benefits. §1113(f) “super-priority” status is not for Ch7.

In Re: Jeri L. PACE,
Debtor. (9th Cir. 1995) John E. HAVELOCK; John R. Strachan, Appellants, v.
Harold S. TAXEL, Trustee, Appellee. No. 93-56685. Decided: June 8, 1995.
In AK, January of 1985, the Corporations sold their assets, including the
liquor licenses, to two individuals and a newly formed corporation. As the
result of their attorneys' failure to include the two licenses in the UCC
filings at the time NPC acquired the Corporations' assets, LeMai and Pace's
purported security interest in the licenses was invalid.

In re Renee Michelle Schwalb
(DC NV 2006) BK-S-05-17766-LBR Judge Markell pens a fascinating history of
pawnbroking and the requirement that under Nevada law, holding an unrecorded
title is not effective under UCC-9.

LeMai and Pace filed a malpractice action
against their former lawyers in Alaska state court in October of 1987 Pace
did not amend his bankruptcy schedules of assets and liabilities to include
the law suit. In May of 1988, LeMai filed her own Chapter 7 petition in
bankruptcy in California, where she had moved following her divorce. LeMai
failed to include her Alaska state claim for legal malpractice as an asset
on her schedule of assets and liabilities.3
Believing LeMai's estate to be devoid of assets, the trustee allowed an
order of discharge to be entered in September of that year. Five months
later, the California bankruptcy court closed LeMai's case. When the
defendant attorneys in the state court action (“the Defendants”) learned of
LeMai and Pace's nondisclosures, they urged the Appellants to inform the
trustees in the two closed bankruptcies that the malpractice action
constituted an asset of their respective bankruptcy estates. The U.S.
Trustee in turn notified Harold S. Taxel (“Taxel”), former trustee in the
LeMai bankruptcy. Taxel successfully petitioned the California bankruptcy
court to reopen LeMai's case, and on February 7, 1991, the bankruptcy court
reappointed Taxel as trustee. Taxel immediately informed the Appellants
that LeMai's bankruptcy estate had been reopened, explained that her
interest in the legal malpractice action constituted property of the
bankruptcy estate, and warned that any further prosecution of the Alaska law
suit would constitute a violation of the Bankruptcy Code's automatic stay
provision. The Appellants ignored the warning and continued to prosecute
the Alaska case. Held: The BAP's conclusion that Taxel may recover his
costs and attorney's fees as damages under 11 U.S.C. § 105(a) is AFFIRMED
using the Pace precedent.

Latman v. Burdette
(Richard K. LATMAN; Bettina L. Latman, Plaintiffs-Appellants, v.
Virginia BURDETTE, Trustee, Defendant-Appellee, Bankruptcy Appeals Clerk,
Real-party-in-interest. v. Virginia Burdette, Trustee, Defendant-Appellant,
Bankruptcy Appeals Clerk, Real-party-in-interest. (9th Cir. 2004) Nos.
02-35538, 02-35545. Decided: April 29, 2004..Bankruptcy Court for the
Western District of Washington that had granted the bankruptcy trustee's
motion to surcharge the Latmans' bankruptcy exemptions to account for funds
not properly disclosed in the Latmans' bankruptcy filings. Held: bankruptcy
court's surcharge remedy was a permissible equitable remedy under the
Bankruptcy Code, and was not barred by election of remedies or res judicata.
Order of bankruptcy judge grantingthe Trustee's surcharge motion, ordering
(1) that the Latmans' § 522(d)(5) “wild card” exemption be surcharged
$7,000, to account for the proceeds of the pre-filing car and boat sale, and
(2) that the Latmans turn over $8,013.52 in cash to the Trustee, or have
this amount also charged against their “wild card” exemption, is upheld.

IN RE DEL MISSION LTD.No.
95-55658. 98 F.3d 1147 (1996) (In re DEL MISSION LIMITED, Debtor. STATE OF
CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT; State of California
State Board of Equalization, Appellants, v. Harold S. TAXEL, Trustee for Del
Mission Limited, Appellee. United States Court of Appeals, Ninth
Circuit. Argued and Submitted August 9, 1996.Decided October 23, 1996.
State Requirement to pay arrears as a condition of sale & transfer of
liquor license is void.

Schultze v. Chandler (9th Cir. July 18, 2014, amended August 1,
2014).malpractice claim for an unsecured creditors’ committee is a core
proceeding. Final purchase of debtor entity included liens not
recorded by DIP attorney or buyer attorney. (I) Core proceeding
because: (1) attorney’s employment & compensation approved by the bankruptcy
court; (2) attorney duties pertained solely to the administration of the
bankruptcy estate; & (3) the claim for malpractice was based solely on
actions for administration of the estate. (II) Committee counsel was held
not liable by the bankruptcy court because no duty was owed to
Plaintiffs individually (maybe and especially where they had differing
interests and differing ability to secure their property) because Committee
was represented as a whole, & not individual members.

In re Mark Dingley (Mark Dingley v. YELLOW EXPRESS, LLC) (9th Cir. BAP
Aug 2, 2014) Ill Advised chance taken that civil contempt would not be
covered by the stay. Creditor wins, but Debtor is encouraged to appeal, (imo
because no MRS) and creditor is duly warned by Judge Jury (really brilliant
analysis) that at the next opportunity, creditor will get slammed. Moral of
the story? Why didn't creditor attorney ask for relief from stay? Not smart,
even in my limited view.Minutiae to be given no weight in future excuses
to avoid RFS: Stay proceedings: (1) Stay does not apply to debtor's LLC's,
(2) proceeding addressing disobedience of a state court order made prior to
the stay was not meant to be suspended (especially where state proceeding
did not “‘attempt in any way to interfere with the property which had passed
to the control of the bankruptcy court; it sought merely to vindicate
its dignity which had been affronted by the contumacious conduct of a person
who ignored its order. - Here Debtor had been ordered to pay attorney’s fees
and costs to Appellants due to his noncooperation with discovery. therefore
no violation of the stay)

In Re TV,
LLC, A California Limited Liability Company, (CITY OF EL MONTE, for itself
and as successor-in-interest to the El Monte Community Redevelopment Agency
v. ISAAC ZFATY and ZFATY BURNS) (9th Cir 2014) No. 12-56445 2:12-cv-02222-PA
One who responds to a frivolous appeal and who seeks sanctions must provide
notice through a separately filed motion (maybe to let them know before
costs are incurred) under Fed.R.App.P 38 and Gabor v. Frazer, 78 F.3d 459
(9th Cir. 1996) Use of show cause hearing for contempt, launched without any
evidence will be denied, but the target of the show cause cannot get
sanctions for a frivolous appeal without a motion. (Let the courts know
early that its frivolous)

In re
Hart; Hart v. Southern Heritage Bank (6th Cir 2014) constitutional
authority to enter a final monetary judgment in a dischargeability action
under 11 U.S.C. § 523(a)(2)(B). Bank requested that the court amend the
order to include an entry of judgment on the amount of each non - disc
hargeable loan. The bankruptcy court did not exceed its authority by
entering a final monetary judgment, even though the decision precluded Hart
from pursuing counterclaims in state court. Hart filed counterclaims in
state court and intended to pursue them later, but Hart filed no
counterclaims in federal court at the discharge adversary proceeding. If the
bankruptcy court had entered a judgment that directly extinguished
counterclaims filed in state court, and those claims were separate and
independent from the bank ruptcy proceedings (like the counterclaim in Stern
), then the bankruptcy court arguably would have exceeded its authority. See
Stern , 131 S. Ct. at 26 11 . But, here, the bankruptcy court did not
address Hart’s state counterclaims directly because she had not filed any.
In addition, the bankruptcy court preserved for Hart an opportunity to
benefit from the state - court litigation between the Bank and Optimum by
reserving the possibility of an offset for Hart were Optimum to succeed.

In
re KVN Corporation, Inc., (9th Cir BAP. 7/11/2014), Carveouts
“BAP” reversed denial of motion for approval of a stipulation between
trustee and secured creditor to liquidate fully encumbered property in
exchange for a carve out from the lien proceeds paid to the bankruptcy
estate. Held: carve-outs presumed improper, but the bad presumption
can be rebutted: (1) the trustee is performing basic duties; (2) benefit to
the estate due to distribution; (3) carve-out terms fully disclosed.

FDIC v. Siegel (In re Indymac Bancorp, Inc.), No. 12-56218 (9th Cir.
Apr. 21, 2014) $55 million tax refund paid to a bank holding company
on account of losses suffered by a defunct subsidiary IS a 11 U.S.C. §
541(a) asset of the holding company’s bankruptcy estate.
Controlled group upflow of tax attributes only allowed outside of
bankruptcy. Tax Sharing Agreement (“TSA”) created debtor
relationship. Argument: (1) federal common law establishes a
presumption that a parent company receiving a tax refund attributable to
the business operations of a subsidiary holds the refund in an implied
or constructive trust for the benefit of the subsidiary; (2) Trustee
presumptively rejected the TSA and thus the TSA is void ab initio. (3)
TSA violated federal banking law by retaining the Refund & created a de
facto loan by the Bank to an affiliated entity without collateral or the
payment of market interest—a violation of 12 U.S.C. § 371c.
Counter Argument: In response, (1) TSA altered the rights in any
tax refund, (2) no significant federal concerns or conflicts with state
common law—two necessary prerequisites to the application of any federal
common law principal, (3) it was error to assume that Bank was the true
and rightful owner of the Refund, & (4) rejection of the TSA was
immaterial as the rejection of the TSA merely constituted a breach
potentially entitling the FDIC to damages for breach of contract.
Holding: Focus was on Bob Richards-- & whether the TSA created a
debtor-creditor relationship (the Trustee’s position) or whether Bob
Richards created a presumptive agency relationship between Bancorp and
the Bank (the FDIC’s position). Held: the TSA created a debtor-creditor
relationship between Bancorp and the Bank. District Court affirmed.

DeNoce v. Neff (In re Neff),
505 B.R. 255 (9th Cir. BAP 2014). 727(a)(2)(A) LOOK BACK is not a “statute
of limitations” subject to equitable tolling but a “statute of repose”.
Fraudulent Transfer. 727 (a)(8) does not contain the two required
characteristics for a limitations period: (1) it does not prescribe a period
of time within which a plaintiff must pursue a claim, and (2) the time
period does not commence when a claimant has a complete and present claim
for relief.

IN RE: THE MORTGAGE STORE, INC., MANO-Y&M, LTD., v. DANE S. FIELD,
Trustee; (9th Cir. 2014) No. 13-16020 Nos. CV 12-0653
JMS KSC; 10-03454 (Chapter 7) Adv. Pro. No. 10-90146 Since 550(a) does
not define the term "initial transferee" , how is the first transferee
determined? Use the Dominion Test (In Re: The Mortgage Store, Inc. Argument
that "one who receives and distributes funds on behalf of a principle is
causing the principal to be the "initial transferee". Examples include
escrow agents. (BAP held that escrow person was distributing as to his own
authority.) 9th circuit holds that In re Incomnet dominion test is the
proper one to apply. In re Incomnet, 463 F.3d 1073 holds also that "holding
legal title" to the funds is a significant factor. (3rd party is always
injured due to debtor's obligation to creditors" Initial transferees are
deemed to be in a position to "monitor" the debtor for fraud. Held,
"MANO is the initial transferee" and "MANO made no alternative arguments and
waived such.

Barry Hammond v. Adam Ross Paul Inc.
(N.D. TX 6-18-2014) collectively, 143 phone calls were placed to Plaintiff’s
phone number (972) 285-6920, from the Defendant’s phone numbers (877)
838-5002, (877)838-5005, and (877) 838-5008, after Debtor received his discharge.
Defendants used an automatic telephone dialing system and a prerecorded
voice to deliver a message when contacting Plaintiff. Further:
Defendant Adam Ross Paul is a successor-in-interest to Defendant Anderson
Randolf Price LLC, and carries on the exact same business, collecting on
accounts that Anderson Randolf Price LLC previously collected on, with the
same individual principals, and the same phone numbers. The court finds that
there was no legitimate business purpose for creation of the new entity.
Accordingly, this court holds that Defendants Adam Ross Paul, Inc. and
Anderson Randolf Price, LLC are to be treated as one and the same for legal
purposes, under either alter-ego principles, corporate sham principles, or
other, similar veil-piercing principles. Held: Anderson Randolf Price
L.L.C., should pay Plaintiff $200.00 for each of 140 telephone calls,
totaling $28,000.00, to compensate Plaintiff for Defendants’ actions and
omissions in an attempt to collect a debt in willful violation of the
discharge injunction.

Litton Loan Servicing v. Robert Blendheim
(9th Cir 2014) No. 13-35354.Ocwen
Loan Servicing LLC appeals the district court's affirmance of the bankruptcy
court's orders regarding avoidance avoidance of a lien in a chapter 13 case.
[2:11-cv-02004-MJP] Q: Stripping of the
lien from the debtors property is only contingent upon successful completion
of the debtor’s chapter 13 plan, rather than upon discharge?

Crawford vs. LVNV Funding, LLC, 2014 Westlaw 3361226 (11th Cir.)
Just as LVNV would have violated the FDCPA by filing a lawsuit on stale
claims in state court, LVNV violated the FDCPA by filing a stale claim in
bankruptcy court.

Wu v. Markosian (In re Markosian) – 9th Cir. BAP (3/12/14). The
United States Bankruptcy Appellate Panel of the Ninth Circuit (the “BAP”)
has affirmed a bankruptcy court’s ruling that individual debtor’s chapter 11 post-petition earnings which are property of the estate under §
1115 revert to him or her upon a subsequent conversion to chapter 7.

In Re
Mingueta, 338 B.R. 833 (Bankr. C.D. Cal. 2006) Budget and Credit
Counseling prior to filing was not done. Having neither obtained
credit counseling nor established grounds for a temporary or permanent
waiver of § 109(h)(1)'s credit counseling requirement, Mingueta was
ineligible to be a debtor when his chapter 13 petition was filed on
January 4, 2006. Accordingly, Mingueta's request for an exemption from §
109(h)(1)'s credit counseling requirement is denied and the case will be
dismissed without prejudice.

Boyle Avenue Properties v. New Meatco Provisions, LLC (In
Re New Meatco Provisions, LLC), (9th Cir BAP. 5/30/14)rejection of a
commercial lease retroactive to the date of the filing despite subtenant
of the debtor still in possession of the premises due to quick action,
no delay and expedited hearing request.

RONALD A. NEFF, v. DOUGLAS J. DENOCE, (In
re: RONALD A. NEFF) (9th Cir BAP 2/1/2014) Nos. CC-12-1664-KiTaD,
CC-13-1017-KiTaD, (cross appeals), Bk. No. 11-22424-VK. The key to
disability is inability to perform useful gainful work at the time of
filing of the current bankruptcy case. The homestead exemption can only
be denied by a bankruptcy judge. Sloppy records submission can
harm a case. Once Debtor produces and begins to carry the burden,
the creditor should clearly produce sufficient evidence to rebut,
and this was not done. CCP § 704.730(a)(3)(B) homestead exemption was
improperly denied. Transactions that were reversed without the
direct action of the trustee are not subject to § 522(g) limits of the
ability of a debtor to claim an exemption where the trustee has
recovered property for the benefit of the estate. Under § 522(g)(1), a
debtor may claim an exemption where the trustee has recovered property
under §§ 510(c)(2), 542, 543, 550, 551 or 553 only if (1) the property
was involuntarily transferred, and (2) the debtor did not conceal the
transfer or an interest in the property.

Richardson v. Melcher (In
re Melcher) (9th Cir. BAP April 11, 2014). Near-Vexatious
litigant that drained the estate to control Stonewall property that
should have normally went to trustee sale. Because Vexatious
Litigant status was not confirmed, the court ruled that a ban on the
debtor's filing pleadings could not be imposed. Held: Bankruptcy court
abused its discretion in not allowing the "Lack of Standing Motion"
because it failed to avail itself of 28 U.S.C. §1651(a), aka the “All
Writs Act,” which enabled bankruptcy courts, to issue all writs
necessary or appropriate in aid of their respective jurisdictions”.
The court cited DeLong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.
1990). The court cited factors from Safir v. U.S. Lines, Inc., 792
F.2d 19 (2nd Cir. 1986), that should have been considered.

In Re
Viet Vu, VIET VU and Mai Vu Debtor Appellants v. John T. Kendall,
Chapter 7 Trustee, Appellee. 245 B.R. 644 (February 8, 2000); BAP No.
NC-99-1523-RyMeR. Bankruptcy No. 92-50827-JRG-7. Pursuant to § 541 and
Ninth Circuit precedent, the Property became property of the estate as
of the Filing Date and any postpetition appreciation inured to the
benefit of the estate. Further, the assertion that there was "no
equity available to the estate once their postpetition mortgage payments
and improvements to the Property were reimbursed as an administrative
expense claim" was rejected. "[B]ecause Debtors had not yet sought
approval of their administrative expense claim, any amount that they
claimed was merely speculative. Further, Debtors provided no evidence
that the source of their payments was their postpetition income."

In re
Gebhart, 621 F. 3d 1206 - Court of Appeals, 9th Circuit 2010debtors filed for Chapter 7 bankruptcy at a time when the value of the
equity in their homes was less than the amount they were eligible to
claim under the state or federal homestead exemption. Discharge on
December 12, 2003. However, the bankruptcy case was not closed,
and on November 10, 2006, the Trustee asked the bankruptcy court to
approve the appointment of a real estate broker to sell the home for the
benefit of the estate. Held: (1) case was left open and trustee can act
even much later, (2) no abuse or estoppel for acts of the trustee, and
(3) post filing appreciation, even if much later inures to the estate.

In re: Santiago Omar Hernandez and Michelle Patrice Hernandez,
EC-12-1537-DJuMk (9th Cir. BAP 2013) Appeal of chapter 7 trustee objection
to exemption claim in Ms. Hernandez’s contingent beneficial interest in her
mother’s irrevocable trust. Debtor would have to survive her mother in order to receive a mandatory distribution of Trust principal. It
had both Crummey and Spendthrift provisions: “Each
time a gift is made by any donor to a trust governed by this agreement, the
beneficiary of that trust shall have the immediate right to demand and
receive [sic] immediate amount that may be withdrawn shall be the amount of
the Internal Revenue Code section 2503(b) annual gift tax exclusion
remaining available to the donor for gifts made to the distribution rights
holder in the calendar year in which the gift is made. . . .”
Further, citing In Neuton v. Danning (In re Neuton),
922 F.2d 1379(9th Cir. 1990), C.P.C. §§
15301-15307, [T]he Probate Code provides that
despite such restraints a creditor may obtain an “order directing the
trustee to satisfy all or part of the judgment out of the payment to which
the beneficiary is entitled under the trust
instrument,” so long as the payment does not “exceed[ ] 25% of the payment
that otherwise would by made to . . . the beneficiary.” [C.P.C.] §
15306.5. In other words, the spendthrift restriction fully protects only 75% of the interest in the trust. Because the
trustee enjoys the power of a hypothetical judgment creditor, [§ ]
544(a)(1), we agree with the BAP that the remaining one-fourth is not
excluded from the estate pursuant to [§ ] 541(c)(2). In short, the
bankruptcy estate possesses an income interest in one-fourth of the payments
due to Neuton . . . The relevance of § 15306.5 is that it removes 25% of
[Neuton’s] interest in the trust from traditional spendthrift status.
Also the court cited Neutron as rejecting the idea that: C.P.C. § 15307 gave
the trustee a means beyond the 25% limitation of C.P.C. § 15306.5 to reach
any amount to which the debtor/beneficiary of a spendthrift trust was
entitled in excess of what he needed for education and support.

In re Dennis J. Cook (9th Cir Bap 2008) Later inheritance from trust
is not part of the bankruptcy estate

In re Rader, 488 B.R. 406 (9th Cir. BAP 2013) Deficiency claim is
not properly disallowable simply because of failure to file suit. (1)
MRS should state that the relief from stay include the deficiency
judgement suit, (2) Judge can clarify whether Judge would prefer to have
deficiency tried as a state court action or adversary proceeding.

In re Fitness Holdings International, Inc. 714 F.3d 1141 (9th Cir
2013) Intercorporate loans can be recharacterized as equity investments in the
context of a fraudulent transfer action. Here, a corporation
"repaid" money to a sole shareholder for a purported loan.

In re Vassau, 499 B.R. 864 (Bankr. S.D. Cal. 2013) Preference to
oversecured senior creditor which can place junior undersecured
creditor in a better position IS a voidable transfer. Put another way,
but for the Transfers, Junior Lienholder would have a secured claim of X
and an unsecured claim ofY. Due to the Transfers, Junior Lienholder has
a secured claim of X plus $41,716.45 and an unsecured claim of Y minus
$41,716.45. (In theory, but for the existence of the junior
undersecured creditor, money paid to the senior oversecured creditor
would free up further property equity for availability to the
unsecureds.

No double-dipping for damage awards where it was attempted to
obtain a fraudulent transfer judgement AND a judgement damage award for
thwarting collection cannot add on further damages. In Renda vs.
Nevarez, 223 Cal.App.4th 1231, 167 Cal.Rptr.3d 874 (2014).] See
immediately below. An $800,judgement prevented a further judgement
for damages to be added on.

In
Shapiro v. Henson (9th Cir. January 9, 2014), Ninth Circuit
held that the trustee’s turnover power is NOT restricted to recovery of
property from entities having only current possession. Debtor here
had a checking account with $6,955.19 and several outstanding checks
on the date of filing. The outstanding checks were voidable, the
estate was entitled to the full $6,955.19 amount at filing (minus any
exemptions) and any checks not cleared on filing day were avoided.
This case provides ANOTHER excellent motivation (and indeed,
justification) for debtors to clean out their bank accounts BEFORE
filing so that they can control and have certain knowledge of their cash
on hand at the day of filing. If it was bad practice to leave an
account in place on the day of bankruptccy petition filing, Shapiro v.
Henson makes it a TERRIBLE practice. Closing out bank
accounts just before petition filing clears a number of potential
problems.

In
Bendetti v. Gunness (In re Gunness)(9th Cir. BAP January 16, 2014),
imonies owed directly to ex-spouse's attorney is dischargeable pursuant
to 11 U.S.C. § 523(a)(5) and (15) because the debt did not relate to a
debt owed to a spouse, former spouse or child “of the debtor.”
Debtor was drawn into a dispute between debtor's husband's ex-spouse
based upon fraudulent transfer using California Rule of Court
5.158(b).which permits the joinder of a party holding an interest in
property alleged to be community property. Then, debtor filed for
bankruptcy relief, and brought an adversary proceeding for declaratory
relief that the judgment was not subject to either Sections 523(a)(5)
(support awards) or 523(a)(15) (non -support domestic relations
awards). For debts under 23(a)(5) or (a)(15) to apply, a familial
relationship must bethe debt must be for the benefit of a spouse, former
spouse or child of the debtor ; and in this case, the relationship
between the debtor and the debtor's husband's ex-wife was not such a
familial relationship.

SALAHELDIN ABDELGADIR and AFAF WAHBI In re Abdelgadir (455 BR 896 – Bankr.
Appellate Panel, 9th Circuit, 2011) Published Opinion NV-11-1021-HJoJu
08/16/2011. When is "primarily a residence" triggered, AND what if the
residence is also a business?

Scarborough v. Chase Manhattan Mortg. Corp. (In re Scarborough), 461
F.3d 406, 411 (3d Cir.2006) (concluding that a claim secured by real
property that is, in part, not the debtor’s principal residence under
the terms of the mortgage, may be modified.) We conclude that a
mortgage secured by property that includes, in addition to the debtor's
principal residence, other income-producing rental property is secured by
real property other than the debtor's principal residence and, thus,
that modification of the mortgage is permitted.

Hughes v. Fukishima (In
re Raj Kamal Corporation), 11-36184, EC-12-1648-KiPaJu (BAP 9th Cir.
Dec. 17, 2013) attorney-client privilege, which is tenuous to non-existent
in bankruptcy cases anyway (as well as other privacy laws) fall to the
obligation under Rule 2014 of the Federal Rules of Bankruptcy Procedure to
disclose all connections with regard to any professionals performing work
with respect to any bankruptcy case

Mwangi v. Wells Fargo
(NV-09-1408-DHPa06/30/2010) Wells Fargo once thought it would be a good idea
to freeze the accounts of bankrupt debtors pending instructions from the
trustees, but has been corrected by BAP, however reversed by the District
Court of Nevada (affirming the bankruptcy trial court decision )

Warfield v. Salazar (In re Salazar)
(9th Cir. BAP March 14, 2012)
chapter 7 trustee may not take a tax refund ordinarily spent during a
chapter 13 simply because it is being converted to a chapter 7.

In re
Mattson, No. 11-1478 (B.A.P. 9th Cir. April 5, 2012).the requirement of
section 1325(b) that all of the debtor's projected disposable be paid into
the plan during the applicable commitment period, is not incorporated into
section 1329 for plan modification

Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008), to
seek a deviation from the 60 month commitment period, opinion as modified,
enabling less than 60 months where the debtors projected disposable income
was negative. (Original
Kagenveama
Opinion) The Flores case (I) (temporarily)changed this at the 9th
Circuit BAP, was intially upheld by a 3 judge 9th circuit panel, and then
REVERSED by an en banc hearing & opinion: (1) BAP Opinion:
In Re Flores
(ANA FLORES V. ROD DANIELSON )(9TH Cir. en banc 9-29-2014)
When a Chapter 13 debtor has no
“projected disposable income,” 11 U.S.C. § 1325(b)(1)(B)
permits plan confirmation only if the length of the proposed
plan is at least equal to the applicable commitment period
under § 1325(b)(4). (Short Circuit result: If debtor is over the median income limit, a 5 year committment period is required, even if the formulaic available income rate is zero.

In re Taylor:
(CASE NO. EDCV 11-1879-GHK 2012 ) Chapter 13 hearing with requirement to
"failure to make payments and failure to timely
file a secured debt payment history declaration, converted to Chapter 7 one day before; and
Judge dismisses.

In Re Jacobson
(No 10-60040 CA 9th 2012) Debtor's home sold at
a sheriff's sale to satisfy judgment, money not reinvested w/in 6 months
loses its exempt character. In combination with
In re
Golden, 789 F.2d 698 (9th Cir. 1986), means that character will be lost
after 6 months either pre- or post- petition.

In Re ANGEL LEPE, (BAP May 9, 2012) Bk. No. 10-60264 BAP No. EC-11-1349-
PaDMk. Chapter 13 can be filed, even if no cash flow problem, merely
todebtor may file chapter 13 for the sole purpose of avoiding a lien,
even if he is cash flow "solvent". Good examination of elements of good
faith/bad faith.

Nathaniel Haynes v. EMC Mortgage Corporation (A131023 1stAppel Dist
2012) Deed of Trust is distinguished from Mortgage with respect to
California Civil Code section 2932.5 provision which requires the assignee
of a mortgagee to record the assignment prior to exercising a power to sell
real property. This provision does not apply to deeds of trust.

In re Higgins, 201 B.R. 965 (9th Cir. BAP 1996) A judicial lien in chapter 7
can be stripped even though there is no equity in the home. Aka
" Debtors who lack equity in home may avoid creditor's judicial lien against
property when lien impairs otherwise valid exemption".

Khachikyan, (BAP 2004) Credit card activity more than one
year before bankruptcy is generally not abuse.

Meyer
v. Renteria (In re Renteria), B.R. (9th Cir. BAP, May 4, 2012).
Bankruptcy court may not deny confirmation of a plan under Bankruptcy Code
Section 1322(b)(1) just because the plan separately classifies and prefers a
codebtor consumer claim over all other unsecured claims.

In re Blixseth
(Samson v. Western Capital Partners, LLC), 684 F.3d 865 (9th Cir. 2012) Secured property
surrender/retention must be performed within the time frame or the stay will
be AUTOMATICALLY terminated. Moreover, property of the estate includes non-debtor interests in property recovered or recoverable through the
Bankruptcy Code's transfer and lien avoidance provisions. 11 U.S.C.section
541(a)(3),(4); Owen v. Owen, 500 U.S. 305, 308 (1991). Property of the
estate, therefore, includes property not identified or listed on the
bankruptcy schedules. Moreover, property of the estate includes non-debtor
interests in property recovered or recoverable through the Bankruptcy and
pledged to reduce a debt. Whether or not property is scheduled is
irrelevant for the purposes of this automatic termination.

Hall
v. United States, 566 U.S. ______, No. 10—875 (U.S. May 14, 2012).
federal income tax (capital gains) liability resulting from a postpetition sale of a
farm by an individual debtor in a Chapter 12 case is not "incurred by the
estate" under 11 U.S.C. section 503(b).

In re Pratt
(CA 1st Cir 2006 -- No.
No.
05-2453) Where Debtor gives
notice of intent to surrender; followed by Creditor's announcement to
refrain from repossessing; Creditors refusal to withdraw lien to allow
debtor to junk the vehicle (where state law requires a lien release as a
prerequisite to accept a vehicle for destruction), becomes objectively
coercive. GMAC
announcement that it did not intend to repossess the "surrendered" vehicle
because it was of insufficient value, and then expressly conditioned its
release of the lien upon the Pratts' agreement to repay the loan balance in
full amounts to a demand for a "reaffirmation," which obviously never
purported to comply with the stringent "anti-coercion" requirements of
Bankruptcy Code section 524(c).

In Re North Valley Mall
(CD CA June 21, 2010 -- Case No: 8:09-bk-19346-TA) Discusses
Till v. SCS Credit Corp., 541 U.S. 465, 479-80, 124 S. Ct. 1951, 1961
(2004), and its search for a "proxy" rate in lieu of a market by starting
with a risk-free or nearly risk free rate, noting that some courts had
adopted a 1-3% over prime adjustment. Issues of feasibility and of cramdown
interest rates are closelyintertwined. Discusses examples of how
to derive a "BLENDED" rate.

In re: Parks (9th Cir. BAP No. 11-60050, August 6, 2012) No voluntary
401K deduction for Line 55 of Form 22C. In other words, The United
States Bankruptcy Appellate Panel of the Ninth Circuit holds that a Chapter
13 debtor's voluntary postpetition retirement contributions are disposable
income under Section 541(b)(7) of the Bankruptcy Code.

In re
Maharaj, 681 F. 3d 558 (4th Cir. 2012). United States Court of Appeals
for the Fourth Circuit has ruled that the Absolute Priority Rule, as it
applies to Chapter 11 individual debtors was not impliedly repealed by the
BAPCPA's addition of 11 U.S.C. section 1115 and the Amendment of Section
1129(b)(2)(B)(ii).

Grogan v. Garner, 498 U.S. 279 (1991) Bankruptcy Code is silent as to the burden of proof
...however....we hold
that the standard of proof for the dischargeability exceptions in 11 U.S.C.
523(a) is the ordinary preponderance-of-the-evidence standard. ... Bankruptcy Court found that all of the elements required to
establish actual fraud under 523 had been proved and that the doctrine of
collateral estoppel required a holding that the debt was therefore not
dischargeable. In re Garner, 73 B. R. 26 (WD Mo. 1987).

In re Hull,
251 B.R. 726 (B.A.P. 9th Cir. 2000) Debtor's community property
interest under Washington law in the income of his nondebtor spouse is part
of his "disposable income" and must be counted in calculating whether he
meets the test of section 1322(a)(1) and section 1325(b)(1)(B). Thus, unless there was a prenuptial agreement indicating otherwise, your
client really does have disposable income of $2,800 per month.

United States v. Nordic Vill. Inc.,
503 U.S. 30, 33-34 (1992), without clear indicaiton of waiver of sovereign immunity, the bankruptcy trustee cannot recover
from government for post-petition transfers.

Taylor v. Freeland & Kronz,
503 U.S. 638 (1992) Supreme Court held that a debtor who had exempted an
asset with an "unknown" value had exempted the entire asset because the
trustee failed to object to the exemption during the thirty-day post
341(a) meeting of creditors.

Schwab
v. Reilly, 130 S. Ct. 2652 (2010) ,
Supreme Court (same justice) held that the debtor could only exempt the
dollar amount she had actually claimed, rather than the asset itself, even
though she intended to exempt the entire asset.

BFP v. Resolution Trust Corp., 511 U.S. 531
(1994), while confining its ruling to carving out a special rule for the forced sale
circumstances of a foreclosure, it disapproved an earlier circuit holding
that "reasonably equivalent value" could be no less than 70% of fair market
value.

Durrett v. Washington National Insurance, 621
F.2d 201, 203-04 (5th Cir. 1980). BFP reasoned that the restrictive conditions
of a foreclosure rendered the price received per se reasonable, as long as
the sale was non- collusive and conducted in accordance with state
requirements.

In
Taylor v. Freeland & Kronz, 503 U.S. 638
(1992) Listed as exempt property the expected proceeds from her pending
employment discrimination suit & Trustee was late in objecting. The
Supremes held that a debtor who had exempted an asset with an
"unknown" value had exempted the entire asset because the trustee failed to object to the
exemption during the thirty-day period following the conclusion of the
section
341(a) meeting of creditors.

Schwab v. Reilly, 130 S. Ct. 2652 (2010)
Holding in Taylor v. Freeland & Kronz should be balanced against this
opinion. The author of both opinions — opined that the
debtor could only exempt the dollar amount she had actually claimed, rather than the
asset itself, even though she intended to exempt the entire asset. Since the
trustee found a
buyer for the asset willing to pay more than the amount claimed, the debtor
lost the asset.

In re Bellingham Insurance Agency, Inc.Bellingham Insurance Agency, Inc. v. Peter H.
Arkinson, Trustee( 9th Cir. Dec 4, 2012) No. 11-35162; Affirming the district court's
affirmance of the
bankruptcy court's summary judgment, the panel held that a non-Article III
bankruptcy judge lacks constitutional authority to enter a final judgment in
a fraudulent conveyance action against a nonclaimant to the bankruptcy
estate, but that the nonclaimant here waived its right to an Article III
hearing. BK judges generally don't have fraudulent transfer jurisdiction
over 3rd parties).

In re Marriage of Branco
(1996) Cal. App. 4th, 1621 Upon marriage, a sole property debt can
become a community property debt.

O'Donnell, et. al. v. Tristar Esperanza
Properties, LLC (In
re Tristar Esperanza Properties, LLC),
BAP No. CC-12-1340-KlPaDu (9th Cir. BAP Mar. 8, 2013). We agree with the
bankruptcy court that permitting a former equity holder to recover the value
of an equity based claim on par with general unsecured creditors is the sort
of bootstrapping thatsection 510(b) mandatory subordination is designed to prevent. Rejecting appellant's argument
that "damages arising from the purchase or sale" of a security does not
encompass contract-based awards to withdrawing LLC members, we AFFIRM.

In re Chappell,
373 B.R. 73, 79, 81 (B.A.P. 9 th Cir. 2007) We address whether postpetition
appreciation of exempt property is to be treated the same under the federal
exemption scheme as under a state's exemption scheme. We conclude that
controlling Ninth Circuit authority involving state homestead exemptions,
which holds that the bankruptcy estate is entitled to postpetition
appreciation in excess of the maximum value permitted to be exempted under
the statutory authority invoked by the debtor, applies with equal force to
exemptions taken under the federal exemption scheme. The factual differences
between existing Ninth Circuit authority regarding state exemptions and the
federal exemption now in question constitute a distinction without
significant difference as to postpetition appreciation. We thus also
conclude that a debtor's entitlement to postpetition appreciation is limited
to the maximum value of the exemption permitted under the
exemption statute invoked. ()AMICUS)

In re Bolden, 327 B.R. 657, 667 (Bankr. C.D. Cal. 2005). In essence, the
debtor must demonstrate that the property is of no "material benefit" to the
estate to obtain an order of abandonment. In Bolden, the bankruptcy
court ordered the debtor to leave homesteaded to facilitate Trustee sale of
over-encumbered house for IRS lien holder.

In re Ellwanger,
89 B.R. 95 (9th Cir. B.A.P. 1988) Daughter slips deed to mom in favor of
daughter-- fraud on the daughter is charged. Husband of decedent Martin
McBroom brought an action under § 612 of the California Probate Code. This
section imposes a penalty of twice the value of the property that had been
withheld, embezzled, or concealed from the estate. The hearing on this
action resulted in a penalty of $240,000 against the Ellwangers & the
Ellwangers file bankruptcy.
In re Ellwanger,
105 B.R. 551 (9th Cir. B.A.P. 1989) - Debts later held to be dischargeable.
Reasoning:
Congress clearly addressed the question of excepting noncompensatory damages
from discharge and determined that only governmental units can avail
themselves of the exception. The language of § 523(a)(2) and § 523(a)(7)
when read in harmony compels the conclusion that Congress intended
noncompensatory damages to be excepted from discharge only where they are
owed to a governmental entity. See generally Suter, 59 B.R. at 947.Similarly, § 523(a)(2)
as an exception to discharge impairs the debtors fresh start and should be
read no more broadly than necessary to effectuate the policy against debtors
avoiding debts incurred as a result of their actual fraud. The award of a
judgment under Probate Code § 612 is a form of punishment to the debtor and
is not compensation for injury to the estate. The estate had recovered the
residence by virtue of the probate court's order, and thus has been made
whole. To allow collection of an additional $240,000 in nondischargeable
debts would result in a windfall to the estate. Section 523(a)(2) & (7) when
read together intend the former, that the creditor be made whole, and
clearly do not intend the later, that the estate receive a windfall. See
generally Id. The estate has been adequately compensated by recovery of the
residence. Because the judgment debt arising from application
of Probate Code § 612 is in the nature of a private penalty and is not
compensation for injury to the estate, the debt falls squarely within the
purview of § 523(a)(7). Since the estate is not a governmental entity as
required by § 523(a)(7), the debt is dischargeable. As a result, it is not
necessary for the bankruptcy court to determine whether the debt in
nondischargeable under § 523(a)(4) or (6).

In re Combs, 101 B.R. 609 (9th Cir. B.A.P. 1989) Dischargeability at
petition date, not later on....Issues: (1). Whether the bankruptcy court
erred in applying the facts in existence on the date of the dischargeability
hearing, and not the date of the filing of the bankruptcy petition, for
purposes of determining dischargeability, & (2). Whether the court
committed reversible error when it characterized the payments under the
divorce decree as money owed on a property settlement, and not spousal
support. Death of spouse which triggered support in another
entity (her estate) should not be allowed . The bankruptcy court had
granted the debtor's motion and ruled that the former wife's death caused an
assignment by operation of law and that the debt, therefore, was
dischargeable pursuant to 11 U.S.C. § 523(a)(5)(A) (irrespective of its
nature as support or property settlement).

In Re Fox ; IN RE FOX 725 F.2d 661 (1984); In re Reginald Charles FOX,
Sr., Debtor, ALL AMERICAN OF ASHBURN, INC., Plaintiff-Appellant, v. Reginald
Charles FOX, Sr., Defendant-Appellee. No. 83-8643 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit. February 24, 1984. - Each
side pays its own attorneys fees (and therefore fees will not be used to
punish the losing party).

In re Angie M. Garcia
(9th Cir. March 5, 2013) Vehicle can be exempted using California Civil
Procedure Code § 703.140(b)(5). that allows a debtor to exempt up to $18,350
in “any property.” & Garcia also moved to avoid the lien on the car pursuant
to 11 U.S.C. § 522(f)(1)(B) allowing debtors to avoid nonpossessory,
nonpurchase money liens on exempt property that is a tool of the debtor’s
trade" -- in this case a real estate professional's vehicle.

In re Welsch (9th Cir 2013) BAPCA forecloses inquiries as to social
security income or to payments to secured creditors. It makes no
difference how many possessions you have.

Wolf v. Jacobson
(In re Myrna Jacobson) (9th Cir. 2012) This devistating
opinion is a warning for every chapter 7 bankruptcy relief seeker that any
property that is sold, especially in bankruptcy, must have the homestead
proceeds reinvested within 6 months or the homestead
protection in the homestead proceeds will be lost.

Bank of America v. LSSR , LLC (In re LSSR, LLC)
(BAP 9th Cir 2013) The manner of service in both designation and identity
entities served. "20 largest creditors. See Rules 4001(a)(1) and 9014(b). Rule 7004(b)(3) requires service on a
domestic corporation or a partnership to be made by mailing a copy of the
motion for relief from stay “to the attention of an officer, a managing or
generalagent, or to any other agent authorized by appointment or by law to
receive service of process . . . .” LBR 9013-3(c) moreover requires that the
proof of service “explicitly indicate how each person who is listed on the
proof of service is related to the case . . . .”

In re
Fretz (IN RE: W. DAVID FRETZ) U.S. v. W. DAVID FRETZ (11th Cir. 2001) No.
00-13404D.C. Docket No. 99-01447-CV-J-NE March 23, 2001. Tax evasion findings will not necessarily carry the day in Bankruptcy
Court. However, nonpayment of taxes, with disregard can support a finding
of nondischargeability. Haas, 48 F.3d at 1158 ("[A] debtor's failure to pay his
taxes, alone, does not fall within the scope of section 523(a)(1)(C)'s
exception to discharge in bankruptcy."

WILLIAM M. HAWKINS , III , AKA Trip Hawkins, v .
THE FRANCHISE TAX BOARD OF CALIFORNIA
(9th Cir. 2014) No. 11-16276 D.C. No. 3:10-cv-02026 Filed September 15,
2014) Kathryn Keneally , Assistant Attorney General a "suggestive tax
evasion" presence into this bankruptcy case. Other cases have held that the
11 U.S.C. §523(a)(1)(C) cannot operate with an intent to discharge taxes
alone. Compare this case with In re Fretz
in this cases page, citing In re Haas, (llth Cir. 1995) 48 F.3d
1153, at 1158 ("[A] debtor's failure to pay his taxes, alone, does not fall
within the scope of section 523(a)(1)(C)'s exception to discharge in
bankruptcy.") In Haas, the sole question at issue in this case is whether a
debtor's failure to pay his taxes, without more, constitutes a "willful
attempt in any manner to evade or defeat such tax" under section
523(a)(1)(C). The court in Haas reasoned "The difficulty with the
government's "plain meaning" interpretation of section 523(a)(1)(C) is that
it effectively would make all tax debts nondischargeable. If every knowing
failure to pay taxes constituted an evasion of taxes under section
523(a)(1)(C), then discharge of tax liability would be available only to
those very few debtors who discovered their debts to the IRS in the course
of their bankruptcy proceedings." In Hawkins, I note the request for
rehearing (October
29 petition of the government for a rehearing en banc
) (Article)

In
re: James Charles Vaughn v. U.S. (10th Cir 2014) No. 13-1189 (D.C. No.
1:12-CV-00060-MSK) An important case since it may become a companion to
Hawkins v. FTB on its way to the Supreme Court. The question is whether,
without a finding of specific intent, can be denied discharge under §
523(a)(1)(C). Bankruptcy court found that Taxpayer had both filed a
fraudulent tax return and willfully evaded his taxes. District court
declined to address the question of whether Appellant filed a fraudulent tax
return. Vaughn argued to the 10th Circuit that bankruptcy court’s finding
that Appellant willfully attempted to evade his tax obligations was
erroneously based on negligent, rather than willful, conduct. Vaughn argued
against Dalton v. IRS , 77 F.3d 1297 (10th Cir. 1996) to allow a “holistic”
review of the evidence before the bankruptcy court. (1) First, Appellant
argues that a finding of “willful evasion requires knowledge that a tax is
owed—not just knowledge of a possibility that the IRS might assess tax
liability sometime in the future.” (2) Second, Appellant argues his
“reliance on the advice of KPMG, his longtime tax advisor, that the BLIPS
transaction was an aggressive but ultimately legitimate tax position might
have been at worst unreasonable under the circumstances, making [Appellant]
negligent,” but not willful. (3) Third, Appellant suggests the recent 10th
Cir. opinion in Blum v. Commissioner , 737 F.3d 1303 (10th Cir. 2013), must
control our review of this case, that a decision to rely on KPMG’tax advice
is not blameless, but . . . does not rise to the level of intentional or
knowing conduct either.” (4) Finally, Appellant argues the bankruptcy
court’s order “couched all of its criticism of [Appellant’s] conduct with
terms generally used to describe negligent conduct.”

MATTER OF GUY E.
McGAUGHEY 24 F.3d 904 (7th Cir. 1994) (Nos. 93-2058, 93-2084. Tax Evader
/ Bankruptcy Fraudster that hides assets. An appeal from the district
court's order partially lifting an automatic bankruptcy stay will not be
affected by a finding of hiding assets which should otherwise operate under
§727(a)(2) with an adversary proceeding. The statement that "the court held
that probable cause existed to believe that Debtor's tax debt was
non-dischargeable because of willful evasion" should not have been stated or
relied upon. Therefore, giving due deference to the district court's
findings regarding Debtor's behavior, we must conclude that notwithstanding
any superfluous discussion of non-dischargeability, the court did not abuse
its discretion. The decision of the court to partially lift the automatic
stay is affirmed.

Dye v. Brown (In re AFI Holding, Inc.), 530 F.3d 832 (9th Cir. 2008)
Underlying opinion 355 B.R. 139 (B.A.P. 9th Cir. 2006) held that (1) “cause” may
include a lack of disinterestedness; (2) the catch-all provision of 11 U.S.C.
§101(14)(E) defining a “disinterested person” is “broad enough to include a
trustee with some interest or relationship that ‘would even faintly color the
independence and impartial attitude required by the Code,’ BAP held that "We
hold that the bankruptcy court properly applied a totality-of-circumstances test
in making its determination that the trustee’s prior connections with insiders
negatively impacted the administration of the estate.

Focus Media, Inc. v. NBC (In re Focus Media, Inc. ) 378 F.3d 916 (9th Cir.
2004)We agree. The record does not depict a company with a few unpaid bills.
Instead, it depicts a company that had substantial amounts of unpaid bills and
no plans or ability to pay them. Finally, Focus does not contend that the
bankruptcy court's discovery sanction ruling prevented it from demonstrating
that it was paying off its debts.11 We therefore conclude that Focus failed to
create a triable issue of fact regarding whether it was generally paying its
debts as they became due.

Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) The
trustee of a corporation in bankruptcy has the power to waive the corporation's
attorney-client privilege with respect to prebankruptcy communications. (only)
The Code gives the trustee wide-ranging management authority over the debtor,
whereas the powers of the debtor's directors are severely limited. Thus the
trustee plays the role most closely analogous to that of a solvent corporation's
management, and the directors should not exercise the traditional management
function of controlling the corporation's privilege unless a contrary
arrangement would be inconsistent with policies of the bankruptcy laws.

Daff
v. Wallace (In re Cass), BAP No.
CC-12-1513-KiPaTa (9th Cir. BAP, Apr. 11, 2013)(unpublished). Recorded abstract
of judgment attached to the proceeds from the sale of a debtor’s residence even
though the abstract was recorded after the debtor’s fraudulent transfer of her
interest in the residence to her daughter.

In re Idalia Roxanna Castillo (CD BC 2013) 2:12-bk-15913 Therefore, the
a mount of Deutsche’s 1111(b)(2) secured claim should include post -petition
attorneys’ fees, but not post - petition interest. Attorneys' fees were
allowed on an UNDERSECURED creditor's fees where they made an 1111(b) election

In Re Griffin (BAP 9th Cir. 2013) 12-60046 Copy of a copy +
declaration is good enough to enable a motion for relief from stay.

SCHWAB V. CIR . No. 11-71957 (9th Cir. 2013) Whole life
policies had surrender charges for surrendering the policy prior to a
contractually specified date. Upon surrender, the net cash value was
below zero. Held, income is realized upon surrender and surrender
penalties are only PART of the finding of value. Tax Court No.10525-07

United States Trust Co. v. New Jersey - 431 U.S. 1 (1977)United
States Trust Co. v. New Jersey - 431 U.S. 1 (1977)
in 1959, the Bankruptcy Court and the United States District Court had
approved a plan that left it with cash sufficient to continue operations
for two years, but with no funds for capital expenditures. A special
committee of the New Jersey Senate was formed to determine whether the
Port Authority was "fulfilling its statutory duties and obligations."
Trial court found that the 1962 New Jersey Legislature "concluded it was
necessary to place a limitation on mass transit deficit operations to be
undertaken by the Authority in the future so as to promote continued
investor confidence in the Authority. The statutory covenant of 1962 was
the result. The covenant itself was part of the bi-state legislation
authorizing the Port Authority to acquire, construct, and operate the
Hudson & Manhattan Railroad and the World Trade enter. "So long as any
of such bonds remain outstanding and unpaid, and the holders thereof
shall not have given their consent as provided in their contract with
the port authority, (a). . . and (b) neither the States nor the port
authority nor any subsidiary corporation incorporated for any of the
purposes of this act will apply any of the rentals, tolls, fares, fees,
charges, revenues or reserves, which have been or shall be pledged in
whole or in part as security for such bonds, for any railroad purposes
whatsoever other than permitted purposes hereinafter set forth."
"Permitted purposes" were defined to include (i) the Hudson & Manhattan
as then existing, (ii) railroad freight facilities, (iii) tracks and
related facilities on Port Authority vehicular bridges, and (iv) a
passenger railroad facility if the Port Authority certified that it was
"self supporting" or, if not, that, at the end of the preceding calendar
year, the general reserve fund contained the prescribed statutory
amount, and that all the Port Authority's passenger revenues, including
the Hudson & Manhattan, would not produce deficits in excess of
"permitted deficits."

Shahverdi v. William Hablinski Architecture (In re Shahverdi), (9th
Cir. BAP June, 2013). Lump sum awards without specifying nature and
source simply won't support an finding of nondischargeability.
Appellee Fadel H owns property acquired in SP title transfer and
quitclaim from W in 2001. H did BK in 2011 and W does BK in 2011
claiming that her marital contribution rights give her an interest even
though it was W'.. As for any possible community interest, DCB contended
that although under CAL. FAM. CODE § 760 the presumption is that all
property acquired during a marriage is community property, CAL. EVID.
CODE § 662 provides a conflicting presumption that the owner of the
legal title to property is presumed to be the owner of the full
beneficial title.

In re Lincoln (Bankr W.D. Tex. 2006). Question of
whether the claims cap under 11 U.S.C. §502(b)(6) applies to a lease
guarantor in bankruptcy. The proper interpretation of §502(b)(6)
is that there are only two requirements for the damages cap to apply: 1)
a claim of a lessor for damages; 2) resulting from the termination of a
lease of real property. The result is not to limit the liability of a
particular entity, but to limit the amount of damages the lessor may be
allowed against the bankruptcy estate.

In re Barbara Lois SCHNEIDER, Debtor, Appellant, and Mike Nolden,
Trustee in Bankruptcy, Appellee.No. C-80-3698-MHP.,9 B.R. 488 (ND CA
1981)- method of computing the exemption: In determining the equity in
the homesteaded property left to the bankruptcy estate the debtor
deducts the total encumbrances of $65,000 from the value of the real
property which is $110,000. She then deducts the $30,000 homestead
exemption from her one-half interest in the joint tenancy which is
$22,500. This, of course, leaves no available equity to the bankruptcy
estate. The trustee computes the equity by deducting the exemption from
the total equity of $45,000 and then deducts the nondebtor's one-half
interest. This leaves a $7,500 equity in the estate.

Langenkamp
v. Culp, 498 U.S. 42 (1990) Respondents were not entitled to a jury
trial. By filing claims against the bankruptcy estate, respondents
triggered the process of "allowance and disallowance of claims," thereby
subjecting themselves to the Bankruptcy Court's equitable power. In
contrast, a party who does not submit a claim against the estate is
entitled to a jury trial as a preference defendant, since the trustee
could recover the transfers only by filing what amounts to a legal
action. Lender will be entitled to a jury trial, but only if it has not
filed a pro of of claim against the estate. not a case where the trustee
is subject to the earlier perfection under 546 and because the 10-day
period under ? 547(e) runs from the date of attachment.

Union
Bank v. Wolas , 112 S.Ct. 527 (1991).While § 547(c)(2), as
originally enacted, was limited to payments made within 45 days of the
date a debt was incurred, Congress amended the provision in 1984 by
deleting the time limitation entirely. That Congress may have intended
only to address particular concerns of specific short-term creditors in
the amendment or may not have foreseen all of the consequences of its
statutory enactment is insufficient reason for refusing to give effect
to § 547(c)(2)'s plain meaning. Also unpersuasive is Wolas' argument
that Congress originally enacted § 547(c)(2) to codify a judicially
crafted "current expense" rule covering contemporaneous exchanges for
new value, since other § 547(c) exceptions occupy some (if not all) of
the territory previously covered by that rule, and since there is no
extrinsic evidence that Congress intended to codify the rule in §
547(c)(2).

Owen v.
Owen, 111 S.Ct. 1833 (1991) Bankruptcy Code allows States to define
what property is exempt from the estate that will be distributed among
the debtor's creditors. Impairs the homestead exemption to which Don
otherwise would have been entitled? yes.

Johnson
v. Home State Bank 501 US 78 (1991) Courts allow a discharged
mortgage to have the ability to be an IN REM claim. Debtor filed Chapter
7 and obtained a discharge which eliminated his personal liability.
Debtor then filed Chapter 13 just ahead of a foreclosure sale. The
district court & circuit court both held that the bankruptcy court
erred; & that the Code did not allow a Chapter 13 plan to modify a claim
where the debtor had no personal liability. Supreme Court held that a
mortgage lien, even where personal liability is discharged, remains a
"claim" against the debtor that can be rescheduled under Chapter 13.

Caterpillar Financial Services Corp. v.
Peoples Nat. Bank, N.A., 2013 WL
776813 (7th Cir.): Facts: A private corporation provided financing to a
coal mining company, which granted the private lender a blanket lien on
its assets. The coal mining company later acquired equipment under
several leases; the lessors were not affiliated with the private lender.
Still later, the mining company refinanced its equipment leases, with
funding provided by Caterpillar. The Seventh Circuit has held that
since a third creditor who asserted the benefit of a subordination
agreement was unable to produce the first creditor’s security agreement,
a second creditor’s lien moved up into the senior position.

In re Village at Camp Bowie I,
L.P., 2013 Westlaw 690497 (5th Cir.): Facts: A commercial borrower
defaulted on its real estate loan. The day before the foreclosure sale,
the borrower filed a Chapter 11 petition and eventually put together a
“cramdown” plan, under which it proposed to pay a group of unsecured
trade creditors in full, in three equal monthly installments. The debtor
claimed that the trade creditors constituted an “impaired consenting
class,” as required by the Bankruptcy Code. The borrower’s secured
creditor argued that the debtor’s tactics were undertaken in bad faith
and that the plan could not be confirmed. The bankruptcy court ruled in
favor of the debtor, and the Fifth Circuit affirmed. The Fifth
Circuit has held that the “artificial impairment” of a small consenting
class of unsecured creditors does not mean that a “cramdown” plan of
reorganization was propounded in bad faith.

In re Blixseth,
484 B.R. 360 (9th Cir. BAP Dec. 17, 2012) U.S. Bankruptcy Appellate
Panel of the Ninth Circuit Court of Appeals (the “BAP”) has ruled that
even though the law generally provides that intangible assets have no
physical location or are located where their owner resides, for purposes
of determining the proper venue of an involuntary chapter 7 petition
against a Washington resident whose principal assets were intangibles
comprising interests in Nevada entities, those assets were located in
Nevada.

In re Gasprom, 500 B.R. 598 (9th Cir. BAP 2013) Corporate debtor
property may not be immediately foreclosed upon despite a lack of
provisions that the debtor could avail itself of in the time period
between asset abandonment & closure of the case (ex: lien/security
interest avoidance, redemption, etc.) On re-opening the case, the
bankruptcy judge stated that any attempt to un-do the foreclosure would
be automatically denied without a hearing. Some commentators believe
that there was no abuse because under all circumstances, the result
would have been the same upon motion for relief from stay and the fact
that the original debtor (personally) would then lack standing to object
to actions by the trustee as to the bankruptcy estate.

In re Ng, BAP No. 11-1702 PaJuH (9th Cir.
B.A.P. September 7, 2012). Abuse BAP first observed that a bankruptcy
court's decision
to dismiss a case under Section 707(b)(3)(B) is reviewed for an abuse of
that court's discretion, citing Price v. U.S. Tr. (In re Price), 353 F.3d
1135, 1138 (9th Cir. 2004). Identifying the non-exclusive list of factors
set forth in Price for considering abuse under the totality of the
circumstances, the BAP further noted that the U.S. Court of Appeals for the
Ninth Circuit has held that the primary factor in such a determination is
the debtors' ability to pay their debts as determined by the ability to fund
a chapter 13 plan. The BAP also explained that, in evaluating the totality
of the circumstances, the bankruptcy court should review the debtors' actual
income and expenses and may take into account both current and foreseeable
changes in their economic circumstances. Held: bankruptcy court did not abuse its
discretion in disallowing the Debtors' voluntary retirement plan
contributions and their pension loan repayments as adjustments to the income
available to repay their creditors.

In United States v. Nordic Vill. Inc., 503 U.S.
30, 33-34 (1992), the Supreme Court held that in the absence of clear
statutory authority waiving sovereign immunity, a bankruptcy trustee cannot
recover monetary damages from the government for post-petition transfers.
The court noted the established doctrine that waivers of sovereign immunity
must be unequivocally expressed and must be construed strictly in favor of
the government. The Court stated "Legislative history has no bearing on the
ambiguity point . . . . [T]he ‘unequivocal expression' of elimination of
sovereign immunity that we insist upon is an expression in statutory text.
If clarity does not exist there, it cannot be supplied by a committee
report." Id. at 37. In Lane v. Pena, 518 U.S. 187, 192 (1996), the Supreme
Court held that a Merchant Marine cadet who was discharged from the academy
in violation of the Rehabilitation Act cannot recover monetary damages from
the government because the 1986 amendments to the Act did not provide for
monetary damages against federal agencies. Accordingly, a damage award
against the United States must be limited to only so much as is authorized
by the statute waiving sovereign immunity, and if the statute does not
clearly provide for recovery for emotional distress, recovery should not be
awarded.

In re Khan, 11-57609-BB, CC-13-1297-DPaTa (BAP 9th
Cir. Dec. 17, 2013). Filing Pro Se, messing it up, and then asking for
it to be EXPUNGED!!! Ms. Tasheena Khan (“Debtor”) filed a
pro-se chapter 7 case in LA but without the required credit
counseling certificate. After hearing on why it should not be closed,
the court closed the case. Debtor filed a pleading in which she
urged the bankruptcy court to expunge her bankruptcy filing so that it
would no longer appear on her credit reports. Debtor appealed the
Expungement Order to the BAP.

In re Irene Michelle
Schwartz-Tallard
(9th Cir. March 14, 2014) No. 12-60052
Debtor is not precluded from recovering attorney's fees as damages for
defending against creditor's appeal of a finding that the Automatic Stay
had been violated

One action rule (1) the loan was for less than $150,000, (2) secured
by residential real property, & (3) the borrower occupied the property as
his home. Further, where is the "now disappeared" prior lender to testify
about reliance? In addition the BAP affirmed an award for attorneys’ fees
to the borrower because it found that the plaintiff’s position was not
substantially justified pursuant to 11 U.S.C. § 523(d).

CCCP § 726(f) & (g) are discussed, which
cuts off the ability of a lender to press a fraud claim against a
residential real estate occupier where the loan is for less than $150K.
CCCP § 726(f) & (g) applies to second mortage "sold out" liens. Further,
580b prohibits a deficiency judgment after a judicial or nonjudicial
foreclosure under a trust deed securing a purchase money loan. Further, a
purchase money loan does not lose its purchase money status after a
foreclosure.

To
support a request for attorneys’ fees under § 523(d), a debtor initially
needs to prove: (1) that the creditor sought to except a debt from discharge
under § 523(a), (2) that the subject debt was a consumer debt, and (3) that
the subject debt ultimately was discharged. Stine v. Flynn (In re Stine),
254 B.R. 244, 249 (9th Cir. BAP 2000), [aff’d 19 Fed. Appx. 626 (9th Cir.
2001)]. “Once the debtor establishes these elements, the burden shifts to
the creditor to prove that its actions were substantially justified.” Id.

Time Between Filings

Joyce Babin, Chapter 13 Trustee v. William
Blakely Hamilton (Bankr W.D. AR
2007) No. 6:07-bk-72627. Chapter 13 converted to 7 may be followed by a
second Chapter 13 within two years. Excellent explanation of the "filed
under" language used in the bankruptcy code. § 348(a) & § 1328(f) are
analyzed.

In Rouse v. Wachovia Mortgage , (9th Cir. 2014) No. 12-55278,
9th Circuit panel ruled in a 2-1 decision that, under § 1348, a national
bank is “located” only in the state designated as its main office.

In re Hines (9th Cir. 1998) 147 F3d 1185
--written fee agreement for payment in seven monthly installments of $125
each, supported by a promissory note and seven postdated checks, the first
to be cashed pre-petition and the remainder to be cashed postpetition.--the
legal posture of the attorneys' fees paid or payable by Chapter 7 debtors.
Whether the debtor is required by his or her attorney to pay all of the fees
up front-even before the filing in bankruptcy-or, as here, enters into a
prefiling arrangement for payment of the fees (or a material portion of the
fees) after filing, the legal status of the fees attributable to
postpetition services does not fit comfortably within the provisions of the
Bankruptcy Code.

Sternberg
v.
Johnston (9th Cir.
2010) Atty Fees are not part of the damages. If the violation is
continuous, Motion for Contempt & get fees and damages are the order
of the day. Here, all fees related to proving Johnston’s damages are
disallowed per the American Rule. Distinguishes Young v. Repine (In re
Repine), 536 F.3d 512, 522 (5th Cir. 2008) which finds differently.

In re Sterba (Richard Sterba and Olga
Sterba v. PNC Bank). Despite changes in the restatement of choice of law
rules for federal law, the prior 9th circuit case of Des Brisay v.
Goldfield Corp. , 637 F.2d 680, 682 (9th Cir. 1981). Des Brisay held
that standard contractual choice of law provision does not cover choice
of law questions involving statutes of limitations because the
Restatement generally characterizes statutes of limitations as
procedural in nature. 1988 amendments to Restatement § 142 of
Conflict of Laws fundamentally altered this choice of law rule, but the
BAP is bound by current 9th circuit precedent.

In re Fernandez, 2011 WL 238442 (Bankr. W.D.Tex. 2011) Nevada
extraterritoriality denied by Texas Bankruptcy Court. See also
In re Camp, 396 B.R. 194, 201-203 (Bankr.W.D.Tex.2008) (Gargotta,
B.J.). The Camp decision was recently reversed by the Fifth
Circuit, though on on different grounds. See Camp v. Ingalls (Matter
of Camp), --- F.3d ----, No. 09-50852 (5th Cir. Jan. 21, 2011). The
Fifth Circuit reversed Camp's ruling that Florida's "opt-out"
ruling applied to persons not residents of Florida, despite the language
in the statute expressly stating that it applied to residents of
Florida, on plain meaning grounds. Id.; see also
In re Battle, 366 B.R. 635, 636 (Bankr.W.D.Tex.2006) (same).
The circuit stated that, because of its ruling on this issue, it did not
reach the corollary issues regarding whether section 522(b)(3)(A)pre-empted state law restrictions on
extraterritorial application of a state's exemption law and whether the
savings clause at the conclusion of section 522(b)(3)permitted debtors to claim federal
exemptions when the applicable state both enacted an opt-out law and
prohibited the extraterritorial application of the state's exemptions.
These are issues that are reached in this opinion and so are not
resolved by the Fifth Circuit in Camp.

In Re Arrendondo-Smith, 436 B.R. 412 (Bankr. W.D. Tex. 2010) United
States District Court, W.D. Texas. Issue of whether the Debtor, who,
under the choice-of-law provision of section 522(b)(3)(A) and
Cal.Civ.Proc.Code § 704.710-730, may use California homestead exemption
law extraterritorially to property located in Austin, Texas. An
"ownership interest" in property is not necessary to establish a
homestead, because under California law a homestead is allowed even if
one spouse owns no interest in the property. The Court is mindful of the
strong policy underlying both California law and federal bankruptcy law
to interpret exemption statutes liberally in favor of the debtor. See, e.g., In re Glass,164 B.R. 759, 764 (9th Cir. BAP 1994),
aff'd,60 F.3d 565 (9th Cir.1995). In sum,
however, California exemption law may apply extraterritorially to
property located in the State of Texas, but because Debtor had declared
"homestead" in California she may not now abandon such, and claim a
homestead different than the family homestead
*421 that she and her former spouse
previously established.

In re Arrol
170 F.3d 934 (9th Cir.1999).California
exemption can be applied to a claimed homestead in Michigan.

In re Richard J. Blair (U.S.B.C. E.D. Ohio Dec 13, 2007) under section
109(e), debtors are ineligible for chapter 13 because the rules requiring
"noncontingent, liquidated, unsecured debts of less than $307,675 and
noncontingent, liquidated, secured debts of lessthan $922,975 was not met.
"Contingent" is premised on future events and "unliquidated" means not
capable of discernment. “Mathematical computation is the basis for a
liquidated debt, where opinion, discretion, and exercise of judgment are not
relevant for computation of the amount of the debt.”

United States v. John Milwitt
(CA 9th Feb 5, 2007) 475 F.3d 1150 - Bankruptcy fraud conviction
reversed for lawyer impostor who defrauded tenants by assisting in filing
bankruptcies against landlord creditor. Bankruptcy Fraud involves
defrauding creditors, not assisted people. In enacting section157, Congress
made it quite clear that the new crime was a specific intent crime.The
specific intent to deceive or defraud element of the mail and wire fraud
crimes requires the prosecution to prove that the defendant intended to
defraud an identifiable individual.Similarly, in United States v. Lew , 875
F.2d 219 (9th Cir. 1989), was cited the case of McNally v. United States ,
483 U.S. 350 (1987), stating that "the Court made it clear that the intent
must be to obtain money or property from the one who is deceived." See also
United States v. Mitchell, 867 F.2d 1232 (9th Cir. 1989).

Brown v. Chesnut (In
re Chesnut), 422 F.3d 298 (5th Cir. 2005) In CA, title generally trumps marital
property presumption (absent fraud allegation, order for tracing) . Texas
has a generally opposite outcome. Here, the bankruptcy court, without
deciding whether the Eastland property was community property, found
that Brown's belief that the property was not part of the estate was not
sufficient to obviate compliance with the relief-of-stay procedures of 11
U.S.C. § 362(d). The court assessed Brown a fine and attorney's fees. The
district court reversed the bankruptcy court, and held that the Eastland
property was Mrs. Chesnut's separate property and that, regardless of when
that determination was made, there was no violation of the automatic stay
because Mr. Chesnut had no interest in the Eastland property. Mr. Chesnut
appeals, with the result: REVERSED, & the bankruptcy courts determination of
violation of the stay is upheld. § 362(a)(3) says nothing about the
automatic stay's effect on any act to obtain possession of what is later
determined to be property of the estate. The Eastland property was not
clearly part of Mr. Chesnut's bankruptcy estate at the time of the
foreclosure, but neither was it clearly not part of his estate.
Whether an asset is property of the estate is a legal determination which
frequently entails complex analyses involving a number of legal elements and
a variety of facts. Here, the status of the Eastland property hinged on the
application of Texas's legal presumptions regarding separate and community
property as well as an examination of the factual bases underlying the
transaction, including the text of the title documents, the source of
purchasing funds, and even the possible existence of fraud. TEX. FAM.CODE
ANN. § 3.003; Bahr v. Kohr,980 S.W.2d 723,
726 (Tex.App.Ct.1998) (citing Massey v. Massey,807 S.W.2d 391,
405 (Tex.App.Ct.1991)). These questions concerning the characterization of
the Eastland property as separate or community property can only be answered
with finality through the judicial process, which was not initiated here
until after the foreclosure of the Eastland property. Regardless of whether
the Eastland property is ultimately held to have been Mrs. Chesnut's
separate property or the Chesnuts' community property, at the time that
Brown foreclosed on the Eastland property, it was uncertain whether it was
property of Mr. Chesnut's estate and, therefore, was arguable property. A
conclusion that bankruptcy law demands some process prior to the seizure of
arguable property is buttressed and informed by the Supreme Court's analysis
in analogous contexts. In Sniadach v. Family Finance Corp. of Bay View,395 U.S. 337,
89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Court ruled that a post-seizure
determination vindicating a creditor's property rights was not sufficient to
ameliorate the insufficient process attendant to a pre-vindication seizure
of the property. The district court erred in absolving Brown's willful
violation of the automatic stay with a post-seizure determination of the
property's characterization.

Tracht Gut, LLC v. County of Los Angeles (In re Tracht Gut, LLC),
12-20308 (MT); CC-13-1229-PaTaD (B.A.P. 9th Cir. Jan. 3, 2014). Looks
as if someone is doing a late, fire, bargain basement sale of property in
which back taxes are owing, and in which the scheme is to buy the property
only after it has been reduced after sale, with the sellers discounting
deeply due to the slim ability of the buyer to un-do the sale.

Utnehmer v. Crull (In re Utnehmer)
, No. NC-12-1362-PaDJu, 2013 Bankr. LEXIS 4482 (9th Cir. BAP Oct. 10,
2013).] Good discussion of what
constitutes a partnership in California, with a finding of partnership
existence as a prerequisite to a finding of defalcation under the culpable
state of mind requirement imposed by the Supreme Court in Bullock v.
BankChampaign, N.A., 133 S. Ct. 1754 (2013). Reversing based upon lack
of partnership saved remand to determine culpable state of mind, as the
trail level determination was made before the Bullock case.

In re Brunner,
46 B.R. 752, 753 (S.D.N.Y., 1985) ( Aff'd by 831 F.2d 395 (2d Cir. 1987)).
Today's landmark case for educational loan discharge despite the fact that
when it was decided, there was a 7 year statutory limit on
nondischargeabilty of student loans meaning that there was a safety valve
then that is not in existence today.

In re: TARRA NICHOLE CHRISTOFF,
(INSTITUTE OF IMAGINAL STUDIES dba MERIDIAN UNIVERSITY v. TARRA NICHOLE
CHRISTOFF BAP No. NC-14-1336-PaJuTa Bk. No. 13-10808 Adv. No. 13-3186
Educational Loan requires that the borrower have access to the funds. An
accounts receivable for tuition from an educational institution may not fall
under the general requirements for educational loans.

The nature of student loans as nondischargeable is not, by itself, a
reasonable basis for giving them preferential treatment. Instead, the Debtor
must show some other factors which demonstrate that discrimination is
necessary."

In re Janet Rose Roth (9th Cir BAP) - Undue Hardship is reviewed De Novo
because it is a mix of facts and law. Burden is met with respect to
the good faith prong.

Spangler
v. Memel , 7 Cal.3d 603 (1972) - California's Anti-Deficiency
Statute; Where buyers each individually waive their protection from
deficiency judgments and each give a written personal guaranty of joint and
several liability for the payment of the $63,900 promissory note, the trial
court further found that the guaranty and waiver of anti-deficiency
protection in return for the subordination clause was a separate obligation
from the purchase of the property and that estoppel applies and that 580b is
here inapplicable. We, therefore, conclude that the subordination
clause situation is sufficiently different from the standard purchase money
mortgage situation to [7 Cal.3d 612] remove it from automatic application of
section 580b and to require an analysis of this factual setting in light of
the purposes of section 580b in order to determine the applicability of that
section. 580b purpose: 580b thusly: "The purposes are to discourage land
sales that are unsound because the land is overvalued and, in the event of a
depression in land values, to prevent the aggravation of the downturn that
would result if defaulting purchasers lost the land and were burdened with
personal liability.

Seyed Shahram Hosseini v. Key Bank, N.A. (In
re Seyed Shahram Hosseini), BAP No.CC-12-1516-DKiTa (BAP 9th Cir.
Jan. 6, 2014). Affirming order awarding EXTREMELY limited
costs and denying all attorneys’ fees to debtor who obtained judgment
discharging his student loan debt under section 523(a)(8), drives home the
point that debtors pay for their own costs of opposing the student loan
companies and that even if the student loan company loses, it will not pay
your attorney fees. Here, the debtor wanted $4,960.39 in costs and
$110,701.50 in attorneys’ fees -- NO DICE.

Coker v. JP Morgan Chase Bank,
The California Court of Appeal held that the borrower was entitled to
declaratory relief because the lender was not entitled to pursue its
contractual entitlement to a deficiency after short sale. The court held
that the borrower's agreement to pay the deficiency in a short sale
agreement, regarding a purchase-money 1st Deed of Trust, was precluded by
Code of Civil Procedure (CCP) 580b, and that the protections of 580b cannot
be waived. (The anti-deficiency protection of CCP 580e appears to have been
inapplicable.) "With the text and purpose of section 580b in mind, we see
nothing in section 580b that leads us to believe it only applies after a
foreclosure as Chase Bank urges."

SANCTIONS

(In re George S. LOUIE) David Wong v. George
S. Louie.1. Final Reconsideration Ruling on 342(g)(2) (No. 2:12-cv-01172-GEB, Case No.
11-25036-C-7. United States District Court, E.D. California. November 8,
2013.:ORDER REVERSING AWARD OF ATTORNEY’S FEES. Docket entry: ORDER
signed by Judge Garland E. Burrell, Jr., on 11/8/13 ORDERING that the
Bankruptcy Court's award of attorney's fees is REVERSED. In light of this
reversal, the issues decided in the 3/28/2013, order should not have been
decided. Hence, that order is VACATED. (Kastilahn, A)2. District Court's First Ruling
ignoring 342(g)(2) on the basis of it not being earlier raised (No.
2:12-cv-01172-GEB, BK Case No. 11-25036-C-7. United States District Court,
E.D. California. March 28, 2013. ORDER AFFIRMING AWARD OF ATTORNEY’S FEES3. Underlying bankruptcy court order not currently
available.Background: Attorney for creditors file a lawsuit in California State court
against a debtor. Later, a decision is made to file an involuntary
bankruptcy petition against the debtor by the same attorney. After the
involuntary petition is filed, the state court judges order the attorney to
appear in the state court case, and even after the state court judges are
informed of the involuntary petiton filing. The bankruptcy court
sanctions attorney $7500 for actions that occurred when the attorney
appeared in state court. Takeaway: This illustrates the
potential danger when attorneys engage in bankruptcy and non-bankrupty cases
simultaneously. Due to the loss of privilege upon bankruptcy filing
for debtors, consumer attorneys are at an even greater risk.

Revenue & Tax Code
§ 6829

In re George,
George (bobby W., Ariel D.) v. California State Board of Equalization, 905
F.2d 1540 (9th Cir. 1990) California Tax & Revenue Code § 6829 is a
"tax" and is nondischargeable (perhaps only because the bankruptcy was filed
much sooner than it should have been?)

In the Matter of the Petition for Redetermination under the Sales and
Use Tax Law of
Hosmer Chandler McKoon,
BEFORE THE STATE BOARD OF EQUALIZATION OF THE STATE OF CALIFORNIA, May
31, 2007. Detailed explanation of the limitation periods for
California Tax and Revenue Code § 6829 and including the suggestion that
taxpayers could start the shorter 3 year limitations period by filing an
individual sales tax return with a $0 amount and indicating the business
for which personal liability is indicated.

STATE BOARD OF EQUALIZATION, Plaintiff and
Respondent, v. Stanley WIRICK, Defendant and Appellant.
No. C036346. -- October 30, 2001. The sweeping import of Revenue & Tax Code
§6829 is demonstrated upon the appellant who unsuccessfully argued that the
responsible officer is the officer in charge at the time of dissolution
(wrong) and that §6829 has no statute of limitations (wrong). "upon
termination of a corporation, any current or former officer may be
personally liable for unpaid sales taxes of the corporation if the officer
willfully failed to pay such taxes." And under §6929, willfullness
will be more likely found in a decision by the BOE and perhaps less
likely found in a refund action in Superior Court.

In re Slabbinck (ED MI Sou.Div 2012)
Excellent Unbundling and Prepetition/PostPetition Feek Agreement Discussion.
Is the potential for a similar divide between pre and post petition activities
in the Central District of California the driving force for the drafting, and
imposition of the
Chapter 7 RARA?

This case gives greater
illustration to the need to always file a tax return timely, even if there is
no money to pay the tax that is owed. In addition to extending
the statute of limitations for collection when you do not timely file, you can
also be setting yourself up for the subject income taxes (especially a lower
threshold amount of assessed taxes) not being dischargeable in bankruptcy
below the threshold amount, due to the issuance of an SFR.

Ralite Case
regarding liability for a long idle corporate entity with no fraudulent
conveyances.

U.S.
v. SIMONELLI United States District Court, D. Connecticut,
September 30, 2008. Civil No. 3:06cv653 (JBA). 614 F.Supp.2d 241 (2008)
FBAR assessment is not a "penalty" because it is not based upon any
underlying tax; and therefore it is not dischargeable in bankruptcy.
523(a)(7). In 31 C.F.R. § 103.24 the Secretary of the Treasury
delegates to the IRS the authority to assess and collect civil penalties
under 31 U.S.C. § 5321, and to "investigate possible civil violations" of
the Bank Secrecy Act. In re Lorber Industries of California, Inc., 675 F.2d
1062 (9th Cir.1982) to determine whether his FBAR penalty is a "tax" rather
than a "non-tax charge[]." In re Lorber concerned the priority of debts,
including "taxes," to be repaid out of a debtor's estate after a petitioner
is adjudged bankrupt. See id. at 1063. According to In re Lorber, a tax is
characterized as: (a) An involuntary pecuniary burden, regardless of name,
laid upon the individuals or property; (b) Imposed by, or under authority of
the legislature; (c) For public purposes, including the purposes of
defraying expenses of government or undertakings authorized by it; (d) Under
the police or taxing power of the state.
The FBAR penalty is not an "involuntary pecuniary burden;" the Bank Secrecy
Act does not impose any pecuniary burden on covered entities who fulfill
their obligations under the Act, only those who violate federal law by
failing to file FBARs when the Act requires them to do so.
Given the text, framework, and history of the Bank Secrecy Act, as well as
the plain meanings of the terms "tax" and "penalty" and the operation of §
5321(a)(5), the "better terminology" to describe the FBAR penalty is as a
"civil money penalty."

United States v. Galletti (02-1389) 541 U.S.
114 (2004) ;The proper tax assessment against the Partnership suffices to
extend the statute of limitations to collect the tax in a judicial
proceeding from the general partners who are liable for the payment of the
Partnership's debts.

In re Condel, Inc., 91 B.R. 79 (9th Cir.
B.A.P. 1988) IRS may not be enjoined from collecting taxes from officers or
directors via Chapter 11 plan AND IRS may apply tax payments as they see
fit, since payments are not deemed "voluntary"

In re Fowler, 394 F.3d 1208 (9th Cir. 2005)
"We hold that section 348(d) requires that postpetition employment tax debt,
incurred as an administrative expense of a Chapter 11 bankruptcy estate,
retains its first priority administrative expense status upon conversion to
a Chapter 13 bankruptcy plan. Section 1305 is not in conflict with this
holding because it does not govern the priority of the postpetition claims
it allows into the bankruptcy."

In re Bisch, 159 B.R. 546 (9th Cir. B.A.P.
1993) A federal tax lien which was not included as a part of the IRS proof
of claim and not provided for in the Chapter 13 remains valid despite
confirmation of the plan

United States v. Snyder,
(In re Snyder) 343 F. 3d 1171 (9th Cir. 2003). - IRS claim for delinquent
taxes secured outside of bankruptcy by a lien on a ERISA-qualified
pension plan is not secured in bankruptcy "by a lien on property in which
the bankruptcy estate has an interest" under 11 U.S.C. § 506(a). because
a debtor's interest in an ERISA-qualified plan is excluded from the
bankruptcy estate pursuant to 11 U.S.C. § 541(c)(2). -Debtor's
interest in a pension plan was not property of the estate, and thus it could
not be used to secure the IRS's claim for delinquent taxes in his chapter 13
case.

In re McIntyre, 222 F.3d 655 (9th Cir. 2000)
The IRS may levy upon ERISA-regulated pension benefits to satisfy a
husband's tax debt against the claim that the wife has a vested interest in
half of those benefits under California community property laws.

In re Connor, 27 F.3d 365 (9th Cir. 1994) Fed
tax lien enforceable against a bankruptcy debtor's future pension payments
where the debtor's unqualified right to receive the payments mature before
he filed for bankruptcy

In re Anderson, 149 B.R. 591 (9th Cir. B.A.P.
1992) A debtor's interest in an ERISA pension plan is property or a right to
property to which an IRS tax lien could attach pursuant to 26 U.S.C. section 6321

In re Pacific-Atlantic Trading Co., 64 F.3d 1292 (9th Cir. 1995) When is a
tax "incurred by the estate". When does section 503(10)(1)(B)(I) apply and what
is the Application of section 507(a)(7)(A)(iii)

In re Pletz, 221 F.3d 1114 (9th Cir. 2000)
Under Oregon law, chapter 13 debtor's interest in property held by debtor
and nondebtor spouse as tenants by the entirety had to be valued under
section
506 to reflect concurrent interests of both spouses.

In re Markair, Inc. (II), 308 F.3d 1057 (9th
Cir. 2002) "We hold that, under section 724(b), priority unsecured
creditors have a right to obtain only that portion of the proceeds equaling
the amount of the tax liens; any remaining proceeds go first to the junior
lien claimants, then to the holders of the tax liens insofar as their claims
were not already satisfied and, finally, to the estate."|

United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213,
116 S.Ct. 2106 (1996)Exaction imposed by IRC section 4971(a) on the amount of
an accumulated funding deficiency of a pension plan is "not entitled to
seventh priority as an ‘excise tax' under section 507(a)(7)(E), but instead,
is, for bankruptcy purposes, a penalty to be dealt with as an ordinary,
unsecured claim."

Raleigh v. Illinois Dept. of Revenue, 530 U.S.
15, 120 S.Ct. 1951 (2000) When the substantive law creating a tax obligation
puts the burden of proof on a taxpayer, the burden of proof on the tax claim
in bankruptcy court remains where the substantive law put it (in this case,
but on the trustee in bankruptcy).

U.S. v. Hemmen, 51 F.3d 883 (9th Cir. 1995)
Trustee liable on tax levy, even though it was made before court actually
fixed the amount of administrative expense payment to be paid to debtor's
principal. 362 inapplicable

In re KRSM Properties, LLC, 318 B.R. 712 (9th
Cir. BAP 2004) Limited liability corporation's assets could not be used to
pay LLC members' personal tax liability, where members elect to have the LLC
disregarded as a separate entity.

In re Olshan, 356 F.3d 1078 (9th Cir. 2004)
Presumption of correctness of assessment applies to all items assessed,
except where there is a pattern of arbitrariness or carelessness. Although
taxpayer rebutted in part presumption of correctness as to unreported
business income, IRS still had right to present evidence establishing
existence of unreported income.

In re Bunyan, 354 F.3d 1149 (9th Cir. 2004)
Bankruptcy court lacks jurisdiction to consider tax assessments, where they
became final upon dismissal of appeals in 1993.

In re Montross, 209 B.R. 943 (9th Cir. B.A.P.
1997) Partnership that had no knowledge debtor was using partnership
account for money laundering was not "transferee" for purpose of avoiding
transfers into account

In
re Trimble (Bankr. N.D. Miss. Aug. 24,
2012). The U.S. Bankruptcy Court for the Northern District of Mississippi
has held thata lender's deficiency judgment was nondischargeable under
523(a)(2)(B) where the debtor/borrower misstated her monthly income in a
"stated income/stated asset" loan application to purchase real property.

In Re Mead (US Bk E.D. North Carolina) (Leagle) IRS may not renege on
its offer in compromise position due to a bankruptcy filing. However,
the payments were current at the time of bankruptcy filing, and the fear is
that this case may have been decided upon the fact of no breach of the
agreement at the time of bankruptcy filing.

In
re Winters, Docket No. 13-8025 (12/12/13). The various tax limitation
statutes outside bankruptcy are typically thought of as a group. But
when bankruptcy is considered, the 3year, 2year and 240 day bankruptcy
periods push their way to the forefront of the brain, often to the exclusion
of the other limitation statutes. In Winters, the court relied upon on
the Supreme Court decision in U.S. v. Home Concrete & Supply, 132 S.Ct. 1836
(2012), the BAP determined that the bankruptcy court needed to determine the
amount of income which was under-reported to determine if the income
trigger of 26 U.S.C. 6501(e)(1)(A), will extend the time for assessing
taxes from 3 years to 6 years if gross income was under-reported by more
than 25%; but this is a simplistic statement. In the case, the FY 2004
taxes were filed 9-19-2005, the IRS issued a notice of deficiency on
12-03-2009;. and taxpayer filed a tax court petition on 3-08-2010.
Chapter 7 was filed on 4-20-2011. Outside of
bankruptcy, the 3 year statute (3 years after the due date of the return, or
3 years after the date the return was actually filed, whichever is later)
began on 9-19-2005 and should have expired on 9-19-2008. A six-year
statute would have naturally expired on 9-19-2011. However, the
statute is tolled when the IRS suspends collections, as by the filing of the
tax court case on 3-08-2010. As of 3-08-2010, the limitation period
had run for about 4.5 years with 1.5 years left to go. Did anyone
inform them that by filing a Tax court petition that the progress toward (a)
the 6 year limitation from the tax filing, and (b) the applicable bankruptcy
periods would be halted? The U.S. Bankruptcy Court is
well liked because it can be accessed without having to pay the tax in
advance,. However, you need to have something substantive to prove.
Filing simply to delay makes no sense because (1) its contrary to the law,
(2) it tolls your IRS statute of limitations, and it also tolls certain of
the bankruptcy periods. Without the 3-08-2010 tax court filing,
and looking at the state of affairs on 4-20-2011, there might have been two
important dates, the first date would be the 9-19-2011 six-year limitation
period. The second would be the date of assessment. A Regular
Assessment includes all assessments not processed as (a) Quick, (b) Prompt
(c) Jeopardy, or (d) Termination assessment. IRM 4.23.11.8. None of
these has a time period by rule with which they must occur. The key is
knowing that even after a tax court filing date is passed, assessment may
not occur for weeks or months. What if the regular assessment had not
occurred until 9-01-2010? If so, then the 240 day period post
assessment would not occur until May 29, 2011. If the original notice
of deficiency on 12-03-2009 had been properly made, the tax would not be
dischargeable because the chapter 7 filing was too soon, within the 240 days
of assessment. The key is that the actual assessment day is unknown
until it is verified as having occurred. So, as of 4-20-2011,
and without a tax court filing, it would have been a good idea to check on
when assessment occurred, consider the legitimacy of the deficiency
assessment and then wait until 9-19-2011 is well past before considering
bankruptcy. The message is clear: don't file any action that would
harm the bankruptcy time line. But if you have concrete evidence that
you don't owe the tax get it out early and only file the Tax Court case if
you intend to stick with it. Taxpayer still might prevail if it can be shown
that the income in 2004 was not different by more 25%

Putnam Notes: 523a1bii ; Previously said that
nothing tolls the 2 year period. Tolling of the 3 year period is done.
507a8g hanging paragraph for (3 Year) The hanging paragraph was from 2005
and was used to toll the two periods (3year and 240). bii "filed or given"
and added return return/notice/ equivalent report. Construction is "didn't
intentionally change" = no intent to change. Putnam & 108c
(generally). Equitable tolling is via Young v. U.S. jazz.... Prior bk to the
extent that it prohibits IRS from collecting (6 months?)(argue:
equitable tolling is for statutes of limitation and bii is not a statute of
limitation) 2 (statute of repose cannot generally be tolled by) 2 year
period does not cut off the irs right to collect.(Argument: congress
didn't add tolling to 2 year rule suggests legislative intent not to have it
toll). (straining to rule for IRS.) Only the putnam case, since the late
90's stresses 2 year tolling. In Young, talked about toll + 6 months. Putnam
mentioned no add on period. Do you add 6 months or 90 days? IF old bk
pending within 1 year of the new case, you lose the stay and so its not
necessarily valid. Insolvency units are adding Putnam into their
program. 2 previous cases within the year, the stay does not arise at all.
Putnam did not address whether +6mo or +90days. Not well thought out.

U.S.
v. Home Concrete & Supply, 132 S.Ct. 1836 (2012) The court makes it
clear that omitted income is NOT the same as an inflated basis. Income
is not as subject to interpretive re-evaluation as is basis, depreciation,
book value, etc.

Commissioner v. Cooper
(143 T.C. No . 10, 2014) UNITED STATES TAX COURT JAMES C. COOPER AND LORELEI
M. COOPER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Doc
ke t No . 17284-12 . Filed September 23 , 2014. Respondent had a long
history of having once wrestled control away from a partner, and then of
setting things up so that explicit control would be achieved. The
courts looked straight through the agreements and onward to daily effective
control to find that the inventor had not sold his patent, and was not in a
passive position with regard to exploitation of his inventions.
Passivity is a key to being a seller. Creditor is a key to being a seller. A
passive creditor seller should expect nothing more than to be paid and
should have an ability to control nothing more than being paid.

Asahi Kasei Pharma Corporation v. Actelion
(CA 1st Dist Court Appeal 12/18/2013) Takeover parent that advises target to
break its prior contracts with competitors of the parent will lead to
liability. My solutions to the problem would have included (1) use an
independent subsidiary as a joint venture company to increase the distance
of parental (or future parental) responsibility; (2) Acetelion should have
projected cases where both products were competing on the market; the
strength of the split market; the profit that would have been involved had
Asahi approached Acetelion to begin with and any ability to adjust profits
in the agreement; (3) forming a spinoff of the portion of CoTherix that
could have continued on as a marketing service company and that would have
thus been divorced by the parent; and (4) Actelion should haveconsidered the
efficacy of a blended product, looking for synergy and unexpected results
(and in effect a cross license or cross venture for the blended product).

Taylor v. Dominoe's Pizza
(CA Supreme Court 2014) Will the hijacking of the NLRB in August 2015 cause
the sanity of this holding to be challenged?

Marathon
Entertainment, Inc. v. Blasi, 42 Cal. 4th 974 (2008) the California
Supreme Court held that the common law doctrine of severability of contracts
codified in Cal Civ. Code §1599 is available to allow compensation for
services that were not related to the unlicensed procurement activities.

US v. Lawrence Eugene Shaw
(9th Cir 2015) No. 13-05136, D.C. No. 2:12-cr-00862-JFW-1. 18 U.S.C. §1344 (1): To the extent
that this portion of the statute requires any intent to expose a bank to a
risk of loss, the requirement is easily satisfied by the bank's having to bear
some potential administrative expenses that necessarily result from being
defrauded and the bank need not be the intended financial victom of the fraud.
Denied this instruction [In order to convict Mr. Shaw, you must find that [the
bank] itself was both the target of his deception and an intended victim of
the fraud.] United States v. Wolfswinkel, 44 F.3d 782, 786 (9th Cir. 1995).
United States v. Bonallo, 858 F.2d 1427, 1429–30, 1430 n.2 (9th Cir. 1988).
Loughrin v. United States 134 S. Ct. 2384, 2387 (2014). Contra: United States
v. Thomas, 315 F.3d 190, 199–201 (3d Cir. 2002) (holding that under both
clauses, “a
defendant must intend to cause a bank a loss or potential liability, whether
by way of statutory law, common law, or business practice” (internal quotation
marks omitted)).

UNITED STATES
v. WARSHAK - Enzyte Machine convicted for fraud. The evidence was
sufficient to support Warshak's and Harriet's respective convictions for
conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. §
1349. See Jackson v. Virginia, 443 U.S. 307 (1979). Those convictions are
therefore sustained.

GUNN ET
AL. v. MINTON (Feb 20, 2013) Supreme Court.
GUNN's Brief
- Patent Invalidity due to on-sale bar. Experimental use defense was
not raised and was "deemed waived" by the trial court. State court
malpractice suit results, and inventor's attorney urges that claims of
infringement would have failed even if the experimental use would have been
timely raised. Inventor appeals to Texas Court of Appeals based upon the
fact that jurisdiction should have been exclusively within federal court.
The Texas Court of Appeals rejected Minton’s argument, proceeded to the
merits, and determined that Minton had failed to establish experimental use.
The Texas Supreme Court reversed, concluding that the case properly belonged
in federal court because the success of Minton’s malpractice claim relied
upon a question of federal patent law. Supreme Court of the United
States held that Section §1338(a) does not deprive the state courts of
subject matter jurisdiction as to malpractice claims.

Petrella v. Metro-Goldwyn-Mayer,
12-1315. Docket
No. Op. Below (Petrella
v. Metro-Goldwyn-Mayer)10-55934 (9th Cir 2012)) Holding: In a case by
the owner of a screenplay alleging copyright infringement, the doctrine of
laches cannot be invoked as a bar to the pursuit of a claim for damages
brought within the three-year window established by Section 507(b) of the Copyright
Act. However, in extraordinary circumstances, laches may, at the very outset
of the litigation, curtail the relief equitably awarded. Judgment:
(9th Circuit)Reversed and remanded, 6-3, in an opinion by Justice Ginsburg
on May 19, 2014. Justice Breyer filed a dissenting opinion, in which Chief
Justice Roberts and Justice Kennedy joined.

GENERAL CRIMINAL

Alleyne v.
United States (No. 11-9335), (overruling
Harris v. United States,) Any
facts which increase a defendant's mandatory minimum sentence must be proved
beyond a reasonable doubt.

Salinas
v. Texas (No. 12-246), OK for prosecution to comment on the
defendant's pre-arrest silence as evidence of his guilt.

United
States v. Davila (No. 12-167), When a judge participates in plea
negotiations, contrary to Federal Rule of Criminal Procedure 11(c), the
defendant's guilty plea need not be vacated if there is no evidence of
prejudice.

Peugh v.
United States (No. 12-62), ex post facto violation when a
defendant is sentenced under Guidelines promulgated after he committed his
criminal acts and the new version provides a higher applicable Guidelines
sentencing range even when the Guidelines are , because it creates a sufficient
risk of a higher sentence to constitute an ex post facto violation.”

Maryland v.
King (12-207), Re: Maryland DNA Collection Act. "DNA identification of
arrestees is a reasonable search that can be considered part of a routine
booking procedure. If an arrest is supported by probable cause to hold for a
serious offense analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment."

Rosemond v. United States (No. 12-895) dealt with elements required
to prove the offense of aiding and abetting the use of a firearm during and in
relation to a crime of violence or drug trafficking crime.

Fernandez v. California (No. 12-7822) was granted cert and may
likely reverse
Georgia v. Randolph,. A defendant may have to be personally
present and objecting when police officers ask a co-tenant for consent to
conduct a warrantless search. Fernandez has non-defense-friendly facts.

UNITED STATES OF AMERICA, Plaintiff, v. DAMON
S. FORBES, et. al., Defendants.
Criminal Action No. 92-CR-105; UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO 806 F. Supp. 232; 1992 U.S. Dist. November 20,
1992, Filed Primary Amines are not homologs to tertiary amines even
where it occurs at the end of a hydrocarbon chain. (1) not substantially
similar, (2) may not be derived by minor manipulations, (3) Further,
they conclude that AET does not have a hallucinogenic or stimulant
effect [**4] on the central nervous system that is substantially
similar to DMT or DET. (4) Finally, they believe that other scientists
in their field would agree with their conclusions. Note that 21 U.S.C. §
813 elements are stated in the alternative (a) structure, or (b)
stimulant, depressant, or hallucinogenic effect on the central nervous
system that is substantially similar , or (c)with respect to a
particular person, which such person represents or intends to have a
stimulant, depressant, or hallucinogenic effect on the central nervous
system that is substantially similar to or greater than [such effect] of
a controlled substance in [**7] schedule I or II (vague?)

Burrage v. United States (No. 12-7515). certiorari granted to
determine: (A). Whether the crime of distribution of drugs causing death
under 21 U.S.C. § 841 is a strict liability crime lacking the need for
foreseeability // proximate cause; (B) Whether a conviction for distribution of
heroin causing death under mixed causation facts.

Boyer v. Louisiana cert withdrawn where state fails to fund
counsel for an indigent defendant for five years.

Missouri v. McNeely (No. 11-1425), natural metabolization of alcohol
in the bloodstream does not present a per se exigency that justifies an
exception to the Fourth Amendment's warrant requirement for nonconsensual blood
testing in all drunk-driving cases.

U.S. v. Muniz-Jaquez
(9th 2013) Denial of defense request under Rule 16 for Border Patrol
dispatch tapes violates Jencks and Brady. It must be shown that the
aliens went beyond entry and of their own free will to be convicted of
"being found" in the U.S. District court abused its discretion by
failing to order production.

U.S. v. Gonzalez-Aguilar (9th 2013) Rejected Plea Deal is not a deal.
Plea agreement for low range is rejected by the judge after guilty plea taken.
Judge offers defendant withdrawal of the guilty plea and opportunity to proceed
to trial. Rather than (1) re-negotiating, or (2) objecting based upon the
details of the agreement, defendant acquiesces and elects to leave his guilty
plea in place. Where no objection was made, the courtis left with the high
"plain error" threshold.

U.S. v. Needham (9th 2013) Incident at mall, which has nothing
to do with photos, leads to discovery of the identity of the suspect. A warrant
affidavit by detective recites a generalized, made-up profile of the class of
defendants, and uses it to obtain a search warrant of defendant's residence.
Needham’s motion to suppress is denied. An almost-dissenting panel member
concurs only because
the outcome of this case is dictated by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011). Warrant
based upon "rambling boilerplate" from era of United States v. Leon ("good
faith" exception to the
exclusionary rule.) was stopped by
United
States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1991).

IMMIGRATION & TAX

Zhengnan Shi v. CIR (No . 7218-12. 8-26-14) Good Discussion of
Residency and the effect of the U.S. - China Tax Treaty.